Tommie Weatherspoon v. State of Mississippi ( 1996 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 97-KA-00019-SCT
TOMMIE WEATHERSPOON
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 08/15/96
TRIAL JUDGE: HON. ROBERT LOUIS GOZA, JR.
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: RICHARD FLOOD
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY: TOMMY SAVANT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 01/14/99
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 4/8/99
EN BANC.
SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:
PART ONE
¶1. This is a direct appeal from the conviction of Tommie Weatherspoon for possession of cocaine. Trial
was held on August 12, 1996, where at its conclusion the jury returned a verdict of guilty. After reviewing
the presentence report and hearing the defendant, the circuit court sentenced Weatherspoon on August 15,
1996, to a term of three years in the custody of the Mississippi Department of Corrections.
¶2. Weatherspoon was indicted during the 1995 September Term of the Circuit Court of Madison County
for possession of the controlled substance cocaine. Prior to trial, Richard Flood, appointed counsel for
Weatherspoon, filed two motions, one requesting the circuit court to order Weatherspoon and the arresting
officer to take a polygraph test and the second requesting the circuit court to provide funds for a fingerprint
expert for Weatherspoon. On June 20, 1996, both of these motions were denied.
¶3. At trial the three witnesses who testified on behalf of the State were the arresting officer, a narcotics
investigator for the Canton Police Department, and a crime lab expert employed by the Mississippi Crime
Laboratory. On behalf of the defense, Weatherspoon testified along with two other witnesses that were
present at the scene when the arrest took place. Following the conviction and sentencing, Weatherspoon
moved for a Judgment notwithstanding the verdict or in the alternative a new trial asserting the same issues
that are now presented for this Court's consideration. This motion was denied on November 5, 1996. Soon
after, Weatherspoon filed his notice of appeal.
STATEMENT OF THE LAW
I.
THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT THE FUNDS FOR A
FINGERPRINT EXPERT TO EXAMINE THE "MATCHBOXES" FOR HIS
FINGERPRINTS.
¶4. Office Wyman, the arresting officer of the defendant, testified as follows at trial:
Q. Would you tell the jury, please, what happened once you were sent out on that call?
A. Okay. I proceeded to Walnut and Dinkins Street. I proceeded over there, and we'd had several
calls in the area about shots fired. And upon arrival on the scene, there were - - there were several
black males standing beside a car in the general area that I was sent to. So I stopped my car, called
out, and asked them if they had seen anybody fire a weapon or if anything was going on. And one of
the people out there was the Defendant, Tommie Weatherspoon. And I'd asked him, and he had told
me that he hadn't seen anything. And he had his hands in his pocket. He had on, like, a jacket. And I
asked Mr. Weatherspoon to take his hands out of his pocket because, you know, I'm here on a gun
call, I explained to him, for my safety and his. So he took his hands out. And I'm - - he was - - there
was another man standing beside him, and I was speaking to him. And as I did, Tommie reached in
his pocket, in his right pocket with his right hand, pulled out - - pulled it out and tossed two
matchboxes into a ditch. And at that time my backup arrived, and I asked Mr. Weatherspoon to
place his hands on the car, and I cuffed him. And I asked my backup officer, Officer Owens, Robert
Owens, to stay there, right there where those boxes, where I saw him toss them and to watch them. I
took Mr. Weatherspoon and placed him in the car after I searched him and went back and
retrieved the boxes. And they had - - one of them had about 14 rocks of what appeared to be
crack cocaine. And the other box had residue of what appeared to be crack cocaine.
Q. At the time you - - did you recover the boxes?
A. Yes, sir.
Q. And what did you do with them when you recovered them?
A. I turned them over to the narcotics agent, Officer Draine.
¶5. In the instant case, Officer Wyman testified that he saw the defendant throw the two matchboxes into
the ditch. The defendant denied having the two matchboxes. A fact issue for the jury to determine was thus
presented. Weatherspoon requested and was denied a fingerprint expert to analyze the matchboxes and
thereby solve the factual dispute. However, it is questionable whether a fingerprint expert would have been
helpful in this case. First, common sense dictates the lay conclusion that matchboxes are unlikely to produce
a reasonable, reliable print. Second, a "catch-22" situation arises regardless of the findings deduced from an
analysis. If the defendant's prints had been found on the box, he would have used state funds to impeach
himself. The absence of matching fingerprints would prove nothing. The evidence would still consist of
Officer Wyman's testimony balanced against the defendant's denials. The jury question would remain.
¶6. We have previously addressed the issue of whether an expert should be appointed at the request of an
indigent defendant. In Johnson v. State, 529 So. 2d 577 (Miss.1988), we upheld the lower court's denial
of the defendant's request for a fingerprint expert. Writing for the Court, Justice Prather stated:
In Johnson I, this Court noted that on this very issue, the U.S. Supreme Court left undisturbed this
Court's holding that the Constitution does not require a state to furnish an indigent defendant with
expert or investigative assistance upon demand. [Johnson v. State, 476 So. 2d 1195, 1202 (Miss.
1985)](citing Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L.Ed.2d 231(1985)). . .
. This Court weighs on a case by case basis whether the denial of expert assistance for an accused is
prejudicial to the assurance of a fair trial and will grant relief only where the accused demonstrates that
the trial court's abuse of discretion is so egregious as to deny him due process and where his trial was
thereby rendered fundamentally unfair.
Johnson, 529 So. 2d at 589-90. Further, in Green v. State, 631 So. 2d 167 (Miss. 1994), we confirmed
our position regarding court appointed experts by stating:
An indigent's right to defense expenses is 'conditioned upon a showing that such expenses are needed
to prepare and present an adequate defense.' Ruffin v. State, 447 So. 2d 113, 118 (Miss. 1984).
Concrete reasons for requiring an expert must be provided by the accused. Hansen v. State, 592
So. 2d 114, 125 (Miss. 1991).
Green, 631 So. 2d at 171.
¶7. Historically, we have granted the trial court broad discretion in determining the need for court appointed
experts. As Justice Prather stated in Johnson:
There is no single test for determining whether the services of an investigator or an expert are
necessary; that decision will depend on the facts and circumstances of the particular case and must be
committed to the sound discretion of the court to which the request for expenses is directed.
Johnson, 529 So. 2d at 590 (quoting Ruffin v. State, 447 So. 2d 113, 118 (Miss. 1984)).
¶8. We must determine whether Weatherspoon was denied a fundamentally fair trial due to a clear abuse of
discretion by the trial court. The State's sole witness during trial was Officer Wyman who testified that he
observed Weatherspoon toss two matchboxes into a ditch. Weatherspoon was given ample opportunity to
cross-examine Officer Wyman concerning his testimony. Weatherspoon rebutted Wyman by testifying that
the matchboxes did not belong to him. No expert was offered by the State to contradict Weatherspoon's
testimony. If the State had produced an expert at trial to substantiate the claims of Officer Wyman, then the
denial of an expert in support of the defendant's testimony would require close examination. However,
Weatherspoon enjoyed full cross-examination of the State witness and adequately rebutted Officer
Wyman's testimony. Weatherspoon's problem was credibility, not accessibility to expert assistance. No
judicial abuse of discretion occurred in this trial.
¶9. Broad discretion concerning a decision whether or not to furnish funds to employ experts should remain
with the trial court. Under the facts in this case, we cannot fault the trial court determination that an expert
witness to analyze fingerprints was not necessary to the defense.
II.
THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT'S MOTION TO TAKE A
POLYGRAPH TEST, TO PROVIDE FUNDS THEREFORE AND TO REQUIRE THE
ARRESTING OFFICER TO SUBMIT TO A POLYGRAPH TEST.
¶10. Weatherspoon advances the argument that the trial court erred when it denied his motion to take a
polygraph test at the State's expense and require the arresting officer to take one as well. Once again
Weatherspoon cites to Ake v. Oklahoma, 470 U.S. 68, 76 (1985) in support of his argument that the
State must insure that the defendant has a meaningful chance to present his defense which he argues
includes providing the funds for a polygraph test. As explained earlier what the State must provide in
assisting a defendant in the presentation of his defense is left to the sound discretion of the trial court on a
case by case basis.
¶11. The State correctly contends that even if Weatherspoon had taken a polygraph test, the results of the
test would not have been admissible into evidence. "It is well settled that neither the fact of the taking of a
polygraph examination or the results of such an examination are admissible into evidence." Carr v. State,
655 So. 2d 824, 836 (Miss. 1995) (Roberts, J.) (quoting Garrett v. State, 549 So. 2d 1325, 1330
(Miss. 1989)); see also Miskelley v. State, 480 So. 2d 1104, 1108 (Miss. 1985); Pennington v. State,
437 So. 2d 37, 40 (Miss. 1983). It follows that since this type of evidence is inadmissible, the trial court did
not abuse its discretion in denying Weatherspoon's request to take such a test at the public's expense or to
require the arresting officer to take one. Therefore, we find that Weatherspoon was not denied due process
by the proper denial of this motion by the lower court.
III.
THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT THE RIGHT TO
TESTIFY THAT HE HAD VOLUNTEERED TO TAKE A POLYGRAPH TEST
CONCERNING THE INDICTMENT AFTER THE STATE ATTACKED HIS CREDIBILITY
DURING CROSS-EXAMINATION.
¶12. Weatherspoon relies on Conner v. State, for the contention that the State is allowed to testify to the
willingness of one of its witnesses to take a polygraph test in order to bolster the testimony of its star
witness. Conner v. State, 632 So. 2d 1239, 1257-58 (Miss. 1993). In Conner, this Court did not find
reversible error when the trial court permitted the prosecution to introduce evidence concerning the
willingness of a witness for the State to take a lie detector test. Id. at 1259. This Court held that the trial
court did not abuse its discretion when it allowed the testimony in order to rehabilitate an impeached
witness. Id. at 1259. In addition, although not cited by either party, in Lester v. State, this Court stated,
"However, in Conner, this Court stated that evidence of an offer to take a polygraph is only admissible to
support the credibility of a witness whose veracity has previously been attacked." Lester v. State, 692 So.
2d 755, 787 (Miss. 1997) (citing Conner v. State, 632 So. 2d 1239, 1258 (Miss. 1993)). Recently, in
Manning v. State, No. 95-DP-00066-SCT, 1998 WL 334719 (Miss. June 25, 1998), relying on the
Conner decision, this Court held that the testimony of State's witness Earl Jordan that he had volunteered
to take a polygraph examination "was proper redirect after Jordan's credibility had been attacked on cross-
examination by the defense." Manning, 1998 WL 334719, at *22.
¶13. Upon careful consideration and further review, we find that testimony pertaining to a witness's offer to
take a polygraph, whether it be a witness for the State or the defense, is not admissible at trial. To the extent
that this holding affects Conner v. State, Lester v. State, and Manning v. State, cited supra, those
cases are overruled. The record reflects that there was a bench conference where defense counsel
acknowledged that he was about to get into testimony that would disclose that the defendant had offered to
take a polygraph test to shore up his position, the motion was made in a timely manner and was overruled
finding that the proffered testimony would not be proper evidence in this case. We agree it is not proper
evidence.
¶14. In Carr v. State, we quoted an earlier opinion by this Court that addressed the reasoning behind the
rule that forbids the admission of polygraph results. We stated:
It is well settled that neither the fact of the taking of a polygraph examination or the results of such an
examination are admissible into evidence. The supporting argument for inadmissibility is the idea that it
is relevant to establish neither consciousness of guilt, nor an attitude of innocence. If the fact that an
accused volunteered to subject himself to polygraph testing is revealed, it may be self serving
and destroy any value motivation, particularly if the accused knows that the test results are
inadmissible. However, to permit a jury to hear that the accused voluntarily submitted to a
polygraph test, without giving the results, may also work a prejudice to the accused. The jury
most likely would draw unwarranted inferences as the guilt or innocence of the defendant. Thus, the
rule of inadmissibility has valid supporting analysis.
Carr, 655 So. 2d at 836 (quoting Garrett v. State, 549 So. 2d 1325, 1330 (Miss. 1989) (emphasis
added)). We find this reasoning to be persuasive not only with respect to the accused but also to all
witnesses testifying on behalf of either the State or the defendant. In a case where testimony at trial was
admitted that revealed that the prosecution's key witness had voluntarily submitted to a lie detector test, this
Court stated:
The successful attempt by the prosecution by the means employed to implant in the minds of the jury
the impression that because the witness had voluntarily submitted to a lie detector test prior to trial he
must perforce be testifying truthfully in the course of the trial, resulted, in effect, in the substitution of a
mechanical device, without fair opportunity for cross-examination, for the time-tested, time-tried, and
time-honored discretion of the judgment of a jury as to matters of credibility.
Mattox v. State, 240 Miss. 544, 561, 128 So. 2d 368, 373 (1961). Our holding today is in line with
previous decisions by this Court. See Mattox v. State, 240 Miss. at 555-62, 128 So. 2d. at 368-74
(holding that "neither the taking of a lie detector test nor the result thereof should be admitted in evidence");
Thomas v. State, 426 So. 2d 795, 795-96 (Miss. 1983) (warning not to allow testimony that defendant
took polygraph test on retrial); Harrison v. State, 307 So. 2d 557, 562 (Miss. 1975) (reaffirming holding
that "neither the taking of a lie detector test nor the result thereof is admissible as evidence").
¶15. Our holding today does not mean that every time evidence pertaining to a witness's offer to take a
polygraph test or the mention of the witness's refusal to take one is inadvertently admitted at trial reversal is
automatically required. "When, however, the rule as to admission is violated, the courts have generally
looked to the nature of the error and the circumstances attendant to its disclosure." Garrett, 549 So. 2d at
1330. For example, several cases have not been reversed based on inadmissible evidence regarding the
offer to take a polygraph, or the refusal to take a polygraph, or that a witness passed a polygraph test. See
Pittman v. State, 236 Miss. 592, 111 So. 2d 415 (1959) (unsolicited response by witness regarding
defendant being held in jail to take a polygraph was not reversible error where the results were not
disclosed to the jury, the trial judge held that the evidence was not relevant, the motion for mistrial was not
timely, and the error could not have prejudiced the defendant); Stringer v. State, 454 So. 2d 468 (Miss.
1984) (holding that the mere mention of the failure to submit to polygraph testing could not be reversible
when compared to the other evidence placed before the jury and the fact that defendant did not object to
the admission of the evidence); Garrett, 549 So. 2d at 1328-31 (finding that the inadvertent disclosure to
the jury of a release signed by defendant stating that he had agreed to take a polygraph test did not unduly
influence the jury, "although error, it was not prejudicial requiring reversal under the facts and circumstances
of this case"); Pennington, 437 So. 2d at 39-40 (holding that innuendo that prosecution witness passed
polygraph test does not require reversal since the defense failed to timely object). Whether or not the
admission of this type of inadmissible evidence requires reversal necessarily requires a case by case
analysis. However, it should be made clear that any evidence pertaining to a witness's offer to take a
polygraph, refusal to take a polygraph test, the fact that a witness took a polygraph test or the results of a
polygraph test is inadmissible at trial by the State or by the defense.
PART TWO
WALLER, JUSTICE, FOR THE COURT:
IV.
THE STATE COMMITTED REVERSIBLE ERROR DURING ITS CLOSING ARGUMENT
BY MAKING A CHALLENGE TO DEFENSE COUNSEL AND BY APPEALING TO THE
BIAS AND PREJUDICE OF THE JURORS.
¶16. Weatherspoon contends that the following remarks made by the State during closing argument were
improper, because they merely appealed to the bias and prejudice of the jury:
And its my job and what I'm doing here today is asking you to point the finger at this man and say,
hey, buddy, what are you doing on our streets with this crack cocaine in your pocket: Ask some
questions of him. What are you doing with this in your pocket?
I see it everyday. I see it every drug trial we have. They walk through that door, sit at that table, and
ask you to let them walk out of here. They have the gall to do it. And I have the gall to ask you to find
them guilty for what they're doing wrong.
You see, I see - - also see this everyday. You see that rock? That's a murder. You see that rock?
That's a burglary. You see that rock? That's a rape. You see that rock? That's a kid born on
crack cocaine.
Mr. Flood: We're going to object to this, Your Honor. We're going to object to that part of the
argument.
The Court: Sustained.
Weatherspoon failed to move for a mistrial or request that the judge admonish the jury to disregard the
comments. The dissent is correct in noting that an order to disregard would have cured any possible
prejudice. However, it is incumbent upon counsel to move for a mistrial or ask for an admonishment. See
Johnson v. State, 477 So. 2d 196, 210 (Miss. 1985). For whatever reason, Weatherspoon did not take
this next step. We will not reverse the trial court based upon something that it was not asked to do.
¶17. On appeal to this Court, Weatherspoon also objects to the following remarks made by the State
during its rebuttal closing argument:
Mr. Savant: You heard that allegations of wrongdoing, and I ask you to look back at the police
officers who testified here today. I ask you to look back at the lady from the Crime Lab who testified
here today. There was no wrongdoing in this case. I've been accused of wrongdoing, the State of
Mississippi has. Mr. Flood and I will take that up after court.
Again, again, if you want Tommie Weatherspoon on the streets of Madison County, Mississippi,
possessing this poison, find him not guilty. I don't think you want that. I'm asking you to find him
guilty. This is poison. He's guilty of possessing it. He's broken the law. Don't allow him to walk into
this courtroom and lie to you and tell you untruth after untruth.
Police officers have no reason to lie. Monica Artis has no reason to lie. I have no reason to lie. And
we have not lied to you today. The evidence is before you. Find him guilty.
¶18. Weatherspoon asserts that the State made inappropriate remarks in this portion of closing argument
by improperly challenging defendant's counsel, expressing a personal opinion, and vouching for its own
truthfulness. The State correctly argues that none of these comments made in the final summation were
contemporaneously objected to. As a result, we find that this issue is procedurally barred from review.
Johnson v. State, 477 So. 2d 196, 209-10 (Miss. 1985); Ratliff v. State, 313 So. 2d 386, 388 (Miss.
1975).
V.
THE CUMULATIVE EFFECT OF THE ABOVE ERRORS DENIED THE DEFENDANT A
FUNDAMENTALLY FAIR TRIAL.
¶19. Weatherspoon asks this Court to reverse his conviction based upon the combined effect of all of the
alleged errors at his trial, even if we find that no individual error requires reversal in this case.
This Court may reverse a conviction and sentence based upon the cumulative effect of errors that
independently would not require reversal. Jenkins v. State, 607 So. 2d 1171, 1183-84 (Miss.
1992); Hansen v. State, 592 So. 2d 114, 153 (Miss. 1991). However, where "there was no
reversible error in any part, so there is no reversible error to the whole."
Coleman v. State, 697 So. 2d 777, 787 (Miss. 1997) (quoting McFee v. State, 511 So. 2d 130, 136
(Miss. 1987)). Because we find no merit in any of Weatherspoon's assignments of error, we refuse to
reverse his conviction based upon cumulative error.
¶20. CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF THREE (3)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
TOGETHER WITH THE PAYMENT OF ALL COURT COSTS AND FEES AFFIRMED.
APPELLANT IS GIVEN CREDIT FOR JAIL TIME SERVED.
PART ONE: ASSIGNMENTS OF ERROR I, II AND III: SULLIVAN, P.J., PRATHER, C.J.,
PITTMAN, P.J., BANKS, McRAE, ROBERTS, MILLS AND WALLER, JJ., CONCUR.
SMITH, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
PART TWO: ASSIGNMENTS OF ERROR IV AND V: WALLER, J., PRATHER, C.J.,
PITTMAN, P.J., ROBERTS, SMITH AND MILLS, JJ., CONCUR. SULLIVAN, P.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BANKS AND McRAE, JJ.
SULLIVAN, PRESIDING JUSTICE, DISSENTING AS TO PART TWO:
¶21. I disagree with the majority's conclusion that Weatherspoon is procedurally barred from raising as
error the State's improper comments during closing argument. The record reveals that his assertions on this
issue have merit, and I must therefore respectfully dissent.
¶22. During closing argument, the prosecutor equated the rocks of crack cocaine to other crimes, such as
murder, rape, and burglary. The prosecutor's comments were a blatant attempt to inflame the jury. The
State argues that since Weatherspoon's objection to the prosecutor's comments equating each rock of
cocaine was sustained, it fails to see the damage that Weatherspoon endured. Although the State is correct
that the objection was sustained by the trial court, the court failed to admonish the jury to disregard the
improper comments and avert any possible prejudice. See Alexander v. State, 520 So. 2d 127, 131
(Miss. 1988); McFee v. State, 511 So. 2d 130, 135 (Miss. 1987) (holding no error when the trial judge
sustains an objection and instructs the jury to disregard the improper comment).
¶23. The State also argues that the use of the cocaine on the street as the cause of other possible crimes
would have been a reasonable inference that could have been argued from the evidence. I disagree.
Whether there is error based on improper prosecutorial comments must be determined from the facts and
circumstances of the particular case. Ladner v. State, 584 So. 2d 743, 754 (Miss. 1991) (citing
Peterson v. State, 357 So. 2d 113, 117 (Miss. 1978)). The test used by this Court to determine if
improper remarks by a prosecutor requires reversal is this: "'. . .whether the natural and probable effect of
the improper argument of the prosecuting attorney is to create an unjust prejudice against the accused as to
result in a decision influenced by the prejudice so created.'" Ormond v. State, 599 So. 2d 951, 961 (Miss.
1992) (quoting Davis v. State, 530 So. 2d 694, 701 (Miss. 1988)). There is little doubt that the above
quoted language was designed to elicit passion from the jury and create prejudice against Weatherspoon by
stating that each rock found in the matchbox represents a totally different crime. Particularly since the case
rested completely on whom the jury believed, the improper comment that each rock represented a violent
crime may have resulted in a decision that was influenced by this improper comment. It was improper for
the district attorney to inject other possible crimes into the closing argument.
¶24. I also disagree with the majority's conclusion that Weatherspoon's failure to object to the prosecutor's
improper vouching and challenge to defense counsel bars consideration of this issue on appeal. This Court
has stated, "A trial error, however, involving violation of a Constitutional right may reach such serious
dimension, however, that this Court is required to address it, though first raised on appeal." Whigham v.
State, 611 So. 2d 988, 995 (Miss. 1992) (citing Brooks v. State, 209 Miss. 150, 46 So. 2d 94, 97
(1950)). There is no question that a defendant has a fundamental right to a fair trial. When various errors
may create a bias, prejudice and passion that denies this constitutional right then reversal is required.
¶25. Although the outcome of the trial without the improper comments having been made may have been
the same, we should not affirm this conviction on mere speculation. The following language found in Griffin
v. State bears repeating:
. . .any person charged with a crime, under the Constitution of this State, is entitled to be tried in a
proceeding which is conducted by the prosecutor with dignity and propriety, free from name-calling,
gratuitous insult and unnecessary inflammatory comment, repeated expressions of outrage, frequently
recurring and transparent appeals to the emotions of jurors, and other such unacceptable
conduct which this Court has repeatedly condemned. This Court cannot close its eyes to
prosecutorial misconduct, condone it when it occurs, nor tolerate further recurrence.
In the front ranks of those who insist upon compliance with the law should always be found the
attorneys whose duty it is to prosecute those who violate the law. When these officers fail to follow
the law, the whole plan for the administration of justice fails. It is difficult if not impossible for a
trial judge to assure an orderly fair trial without the cooperation of the prosecutor, and errors
occur which this Court cannot ignore. Cases must then be reversed and sent back for a new
trial, and this is true without regard to whether the accused is guilty or innocent. . . .
....
Rule 5.01 and Rule 5.12 of the Uniform Criminal Rules of Circuit Court Practice require that the
attorneys for the state, as well as defense counsel, conduct themselves with dignity and
decorum, treating the court, counsel, witnesses, and even the defendant, with professional
respect. The prosecuting attorneys did not so conduct themselves in the trial of this case. The trial
court is reminded that the rules require that no conduct interfering with or obstructing the
administration of justice shall be tolerated. When prosecutorial misconduct in the courtroom requires
the reversal of a case, that rule has been violated.
Griffin v. State, 557 So. 2d 542, 553 (Miss. 1990) (emphasis added). Several of the comments made by
the district attorney in the State's closing argument were improper. It cannot be said with any certainty that
these comments were harmless or that they did not in fact deny Weatherspoon of his fundamental right to a
fair trial. Based on the foregoing analysis, I would reverse the conviction and remand for a new trial based
on this assignment of error.
BANKS AND McRAE, JJ., JOIN THIS OPINION.
SMITH, JUSTICE, DISSENTING:
¶26. The majority holds "that testimony pertaining to a witness's offer to take a polygraph, whether it be a
witness for the State or the defense, is not admissible at trial." Majority Opinion at 8. In so doing, the
majority returns the law in Mississippi to its pre-Conner state. In Conner v. State, this Court held:
M.R.E. 608(b) states that once a witness's integrity has been impugned,
[s]pecific instances of the conduct of a witness, for the purpose of ... supporting his credibility, ... may
... in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-
examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2)
concerning the character for truthfulness or untruthfulness of another witness as to which character the
witness being cross-examined has testified.
The second exception found in Rule 608(b) would applies [sic] in the instant case. When Detective
Brown testified about Stevens' agreement to take a polygraph exam, the defense had already
launched an attack on Stevens' credibility. Further, Detective Brown was in the midst of testifying
about the means by which the police had sought to verify the truth of Stevens' statement. The only
question remaining is whether an agreement to submit to a lie detector test is "probative of truthfulness
or untruthfulness." While the reliability of lie detector results is subject to debate, it is probably true
that a person's willingness to submit to such a test, particularly where he has little to lose by not taking
it, tends to indicate that the person believes he is telling the truth. The person's subjective response
to the prospect of polygraphic examination, regardless of whether he takes one, amounts to
a specific instance of conduct which is probative on the issue of truthfulness.
Although this Court has never explicitly held that references to polygraph tests are admissible when
used to rehabilitate an impeached witness, the Court did find in Pittman v. State, 236 Miss. 592,
111 So. 2d 415 (1959), that a reference to such a test on redirect examination, where the results of
the test were not disclosed, did not amount to reversible error. See Pittman, 236 Miss. at 597-98,
111 So.2d at 417.
Conner v. State, 632 So. 2d 1239, 1259 (Miss. 1993) (emphasis added). Conner is not a blanket
endorsement of allowing polygraphs as evidence but rather only allows such on a narrow limited basis to
rehabilitation of an impeached witness. I can see no reason why this Court should sound the retreat from the
Conner position.
¶27. Thus, I must agree with Weatherspoon's argument that fundamental fairness requires that the defense
have the same opportunity as the State to rehabilitate an impeached witness's testimony by showing that
said witness was willing to take a polygraph test. In Conner, the witness being rehabilitated was the State's.
Here, the issue turns as Weatherspoon wants to rehabilitate his own testimony which the State has
attacked. Nothing in Conner specifically limits reference to the witness's willingness to take a polygraph test
to a State's witness nor should it.
¶28. Furthermore, in Lester v. State, this Court said in reference to Conner "that evidence of an offer to
take a polygraph is only admissible to support the credibility of a witness whose veracity has previously
been attacked." Lester v. State, 692 So. 2d 755, 787 (Miss. 1997). Weatherspoon's credibility was
attacked by the State. I can see no reason why the defense should not be allowed to put on evidence that
Weatherspoon was willing to take a polygraph test to rehabilitate his testimony when this Court has allowed
the State to do so.
¶29. In Manning v. State, the issue arose again in regards to the impeachment of a witness for the State,
and relying on Conner, this Court said:
In the case before us, the prosecutor made no attempt to disclose to the jury whether a test was
actually taken or what the results of the test were. He only elicited that Jordan [a jailhouse snitch] had
volunteered to take one. This was proper redirect after Jordan's credibility had been attacked on
cross-examination by the defense.
Manning v. State, No. 95-DP-00066-SCT, 1998 WL 334719, at *22 (Miss. June 25, 1998). Again,
nothing in the rationale would preclude this Court from ruling that Weatherspoon should be allowed the
same opportunity to rehabilitate his own attacked credibility by showing evidence of a willingness to take a
polygraph test. In fact, fundamental fairness would require this Court to grant the defense the same
opportunity as has previously been granted to the State. The trial judges in each of the above cases
properly followed and applied Conner. The trial bench and bar should be able to rely upon this Court for
consistency in our opinions and not make radical departures from precedent within a relative short time.
State ex rel. Moore v. Molpus, 578 So. 2d 624, 638 (Miss. 1991); Roberts v. Grafe Auto Co., Inc.,
653 So. 2d 250 (Miss. 1994) (Prather, P.J., dissenting opinion). By retreating from the Conner dictates the
majority has set the stage for the ultimate reversal of three death penalty convictions previously upheld by
this Court.
¶30. Therefore, I would continue to adhere to Conner and its progeny and hold that a person's subjective
response to the prospect of polygraphic examination, regardless of whether he takes one, amounts to a
specific instance of conduct which is probative on the issue of truthfulness, irregardless of whether that
person is a witness for the State or the defense. Once a witness's integrity has been impugned, evidence that
a witness was willing to take a polygraph should be admissible for the limited purpose of rehabilitating the
impeached witness.
¶31. I respectfully dissent.
MILLS, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶32. I concur in part with the majority opinion. However, I dissent as to Issue IV and would alternatively
affirm the lower court.
THE CLOSING ARGUMENT IN THIS CASE DID NOT CONSTITUTE REVERSIBLE
ERROR
¶33. The majority opinion finds the following language by the district attorney impermissible:
You see that rock? That's a murder.
You see that rock? That's a burglary.
You see that rock? That's a rape.
You see that rock? That's a kid born on crack cocaine.
¶34. The defense timely objected to the above language and the trial court sustained the objection, but
failed to admonish the jury to disregard these comments. Nevertheless, even assuming these comments
were improper, they did not likely influence the outcome of the trial.
¶35. We should be hesitant to reverse a conviction on mere speculation. Significant proof existed in the
record to support the conviction of the defendant. The closing comments of the district attorney were not
sufficiently untoward to support a reversal of this case. I therefore respectfully dissent from the majority
decision to reverse this case.
ROBERTS, J., JOINS THIS OPINION. SMITH, J., JOINS IN PART.