Bennett v. State

738 So. 2d 300, 1999 WL 153764
CourtCourt of Appeals of Mississippi
DecidedMarch 23, 1999
Docket97-KA-01541COA
StatusPublished
Cited by6 cases

This text of 738 So. 2d 300 (Bennett v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bennett v. State, 738 So. 2d 300, 1999 WL 153764 (Mich. Ct. App. 1999).

Opinion

738 So.2d 300 (1999)

Derrick BENNETT, Appellant,
v.
STATE of Mississippi, Appellees.

No. 97-KA-01541COA.

Court of Appeals of Mississippi.

March 23, 1999.
Rehearing Denied June 8, 1999.
Certiorari Denied August 26, 1999.

*302 George T. Holmes, Jackson, Attorney for Appellant.

Office of the Attorney General by Pat S. Flynn, Attorney for Appellees.

BEFORE THOMAS, P.J., LEE, AND SOUTHWICK, JJ.

SOUTHWICK, J., for the Court:

¶ 1. Derrick Bennett was convicted of murder by a Hinds County Circuit Court jury. On appeal he argues that the trial court erred in restricting his impeachment use of prior convictions of two of the State's witnesses, in admitting evidence of past criminal acts by Bennett, in denying his motions for a directed verdict or a new trial, and in holding defense counsel in contempt. We find no reversible error and affirm.

FACTS

¶ 2. Sheree Glickman was found dead on the morning of December 25, 1995. She had been shot through the left side of her chest. The bullet traveled through her chest cavity and into her right arm. Her body was in the driver's seat of a red Chevrolet Berretta which had run off the road and into a fence. A "crack pipe" was also found in the vehicle.

¶ 3. Beatrice Wiggins testified that Glickman had asked her about buying $100 worth of crack cocaine as an illicit Christmas gift for Glickman's husband. A heavy price was soon extracted for this conduct. Wiggins flagged down Bennett, whom she knew as "Red," so that Glickman could purchase the cocaine. Rather than make the exchange, however, Bennett drove off with Glickman's money. Glickman angrily rammed Bennett's car. She initially continued to follow Bennett as he drove away, but since her eleven-year-old son was sleeping in the car, she returned in order to leave him with Wiggins. Glickman then resumed her pursuit. According to Wiggins, this occurred about 2:40 a.m. Christmas day. She heard a gunshot some ten minutes later.

¶ 4. Other individuals become important to the story. Nekeith Newsome was in the car with Bennett. He testified that Wiggins flagged down the car, asked for cocaine, and that Bennett got out to discuss the matter. Newsome did not know what was said, but after Bennett returned to the car Wiggins followed and told him not to "do her [Glickman] like that." Newsome agreed that Glickman rammed Bennett's car with her own, but that Bennett got away and went to the home of Josh Wilder.

¶ 5. While at Wilder's home, Daryl Davis came in and bought drugs from Bennett. He then went outside. Later, Glickman drove up. According to Davis, Glickman asked if she could buy crack cocaine. Davis went inside Wilder's home, allegedly bought cocaine, then returned it to Glickman. At her request, Davis gave her a crack pipe to use. Davis then got into her car and both drove off. He testified that while they were driving, someone in another car pulled alongside and fired into their car. Glickman lost control, went off the road, and ran into a fence. She later died from the gunshot wound. Davis recognized *303 Kenny Brown as the driver and Bennett as the shooter. Davis got out of the wrecked car and was allegedly going for help when he was picked up by Bennett and Brown. With Bennett still displaying the gun, Davis agreed not to reveal what had happened.

¶ 6. Kenny Brown's version of what happened begins at Wilder's home when Bennett and Newsome arrived, which would have been after Glickman first tried to purchase cocaine and had rammed Bennett's vehicle, but before she herself went to Wilder's and picked up Daryl Davis. Brown stated that Bennett told him to drive Bennett to get some money from a lady. Brown went where he was told. He eventually pulled alongside Glickman's car, and Bennett fired into it. Glickman's car ran off the road and into a fence. Brown returned Bennett to Wilder's home. There was conflicting testimony as to what Bennett said, if anything, when he allegedly shot Glickman.

DISCUSSION

ISSUE 1: The prosecution's motion in limine

¶ 7. The State presented a motion in limine to prevent the defense from cross-examining the State's witness Daryl Davis regarding two offenses to which he had plead guilty, namely burglary and grand larceny. Cross-examining on Davis's conviction for receiving stolen goods was not included in the motion in limine as the State felt that offense was proper impeachment. The State also requested that another witnesses, Nekeith Newsome, not be cross-examined on his prior conviction for grand larceny. The trial court granted the motion.

¶ 8. Impeachment of witness credibility based on previous criminal convictions is governed by Rule 609 of the Mississippi Rules of Evidence. There is a threshold inquiry for 609(a)(1) analysis. The party desiring to impeach a witness with a prior conviction must first make out a prima facie case that the crime has probative value as to the witnesses's truthfulness. Saucier v. State, 562 So.2d 1238, 1245 (Miss.1990). This applies whether the prosecutor is attempting to impeach a defendant or whether a defendant is attempting to impeach a witness. Id. Bennett merely recited that burglary and grand larceny were crimes of falsehood (which is not generally true) and that their probative value outweighed their prejudicial effect. Since they are not considered crimes of falsehood—a point addressed in detail below—that adds nothing to the conclusory allegation that probative value outweighs prejudice. We find the trial court within its discretion to reject counsel's argument.

¶ 9. The second section of this part of the rule automatically permits use of prior convictions of crimes of falsehood. M.R.E. 609(a)(2). Burglary is not generally considered to be a crime weighing sufficiently on truth and veracity. Townsend v. State, 605 So.2d 767, 770 (Miss.1992). The same holds true for the crime of grand larceny. The supreme court has held that this crime is not generally a Rule 609(a)(2) exception. Blackman v. State, 659 So.2d 583, 585 (Miss.1995).

¶ 10. We find no error in the trial judge's barring use of these prior convictions for impeachment.

ISSUE 2: Testimony regarding prior criminal activity by Derrick Bennett

¶ 11. Bennett complains that a prosecution witness, Beatrice Wiggins, was allowed to testify about unrelated previous drug sales made by the defendant. The controlling evidentiary rule states that "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." M.R.E. 404(b).

*304 ¶ 12. The relevant evidence is this. After testifying that Mrs. Glickman wanted to buy $100 worth of crack cocaine, the witness was asked the following by the prosecutor:

Q. Okay. Did you do anything to help her out?

A. Yes. I flagged down a D boy.

Q. You flagged down a D boy?
A. I flagged down a dope boy who sells crack.

Q. All right. And had you flagged down that person before? Did you know him before?

A. Yes, sir. I knew him.

¶ 13. First, Bennett's objection to the statement of prior contact for drug sales was not raised until five more questions were asked. Thus the objection arguably was untimely.

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Cite This Page — Counsel Stack

Bluebook (online)
738 So. 2d 300, 1999 WL 153764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-state-missctapp-1999.