Booker v. State

745 So. 2d 850, 1998 WL 850084
CourtCourt of Appeals of Mississippi
DecidedDecember 8, 1998
Docket97-KA-00327 COA
StatusPublished
Cited by8 cases

This text of 745 So. 2d 850 (Booker 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
Booker v. State, 745 So. 2d 850, 1998 WL 850084 (Mich. Ct. App. 1998).

Opinion

745 So.2d 850 (1998)

Willis C. BOOKER a/k/a Willie C. Booker, Appellant,
v.
STATE of Mississippi, Appellee.

No. 97-KA-00327 COA.

Court of Appeals of Mississippi.

December 8, 1998.
Rehearing Denied March 9, 1999.
Certiorari Denied June 3, 1999.

*851 Ottis B. Crocker, Jr., Bruce, Attorney for Appellant.

Office of the Attorney General by Dewitt T. Allred, III, Attorney for Appellee.

*852 Before McMILLIN, P.J., and COLEMAN and SOUTHWICK, JJ.

McMILLIN, P.J., for the Court:

¶ 1. This case is an appeal from a criminal conviction returned by a jury in the Circuit Court of Calhoun County. Willis Booker stands convicted of the murder of James Avant and has appealed his conviction to this Court, raising three issues that he claims require his conviction to be reversed. We disagree and affirm the conviction.

I.

The Facts

¶ 2. Evidence presented by the State indicated that Booker and Avant had a heated face-to-face confrontation on the evening of Avant's death. Cooler heads had prevailed and Avant had turned and begun to walk away when he was attacked from the rear by Booker, who had produced a knife that had been concealed on his person. Booker inflicted a mortal wound with the knife on Avant before he could be restrained. Booker, in his defense, claimed that Avant had long been engaged in a practice of threatening, taunting and tormenting Booker, causing him to fear for his personal safety. Booker claimed that this fear had led him to carry the knife at all times. He said that Avant had physically attacked him and that he had drawn the knife to use in self-defense.

II.

The First Issue:

The Admission of Evidence of Booker's Prior Criminal Conviction

¶ 3. During pre-trial discovery, defense counsel requested the State to furnish "a copy of the criminal record of the Defendant, if the State of Mississippi proposes to use any such record for the purpose of impeachment." The State responded "none."

¶ 4. After the State rested, Booker elected to testify in his own defense. During direct examination, his attorney asked, "Willie, what crimes have you ever been convicted of?" Booker replied, "None, really." A probation officer who happened to be observing the trial knew that Booker had a 1991 conviction in Calhoun County for aggravated assault and he informed the prosecuting attorney of this fact. Outside the presence of the jury, the prosecuting attorney notified the court of this information and indicated his intention to cross-examine Booker concerning that conviction. Defense counsel objected, claiming that the failure to disclose the conviction was a discovery violation that could only be cured by the exclusion of the evidence. Over defense counsel's objection, the trial court permitted the State to cross-examine Booker about his earlier conviction. Booker now claims that this was reversible error since this "ambush" by the State left his credibility in tatters.

¶ 5. We find this argument unpersuasive. In the first place, we find ourselves unsympathetic to the proposition that the State's failure to disclose a prior conviction grants a criminal defendant a license to blatantly lie to the jury on that issue without any adverse consequence. Certainly, based on the State's discovery response, Booker was free to take the stand and relate his version of the events surrounding Avant's death without concern that his credibility could be attacked by disclosure of a prior conviction that met the admissibility standard in Mississippi Rule of Evidence 609. However, rather than availing himself of the protective shield afforded him by the State's negative discovery response, Booker elected to rely on what he perceived to be the State's ignorance of a prior criminal conviction to affirmatively misrepresent his general character to the jury by claiming that he was a law-abiding citizen with no history of prior criminal activity—a proposition that he had to know at the time was false. The rules of evidence and the rules regarding *853 criminal discovery, as they relate to impeaching a witness by use of prior criminal convictions, are designed to prevent trial by ambush and to permit a defendant to make an informed decision as to whether he will elect to testify in his defense. These rules are not designed to create traps that permit either party to perpetrate a fraud on the court and prevent the other party from bringing that fraud to the attention of the court, and we decline to construe the rules in a way that would produce such a result.

¶ 6. Additionally, it appears to this Court that Booker has simply read his discovery request and the State's response more broadly than is warranted. He asked for information on prior convictions only if the State intended to use them for Rule 609 impeachment. As the trial court observed, the State, in responding to such a request, could—and probably ought to—conclude that a conviction for aggravated assault would not be admissible for impeachment purposes under Rule 609 and that, even though it was aware the conviction existed, it would not attempt to use it for impeachment. Thus, even had the prosecution team had actual knowledge of Booker's prior conviction when formulating the discovery responses, it would have been quite appropriate to respond as it did.

¶ 7. The question then becomes whether, since the conviction was not admissible for impeachment under Rule 609, the conviction was nevertheless admissible under some other theory. We conclude that it was admissible and that Booker opened the door to the evidence by his response to his attorney's question about other criminal convictions.

¶ 8. There is no doubt that Booker's attorney had the right to inquire of his client concerning prior criminal activity (or, more typically, the lack thereof) in an attempt to demonstrate to the jury the defendant's character as a peaceful and law-abiding citizen. See M.R.E. 404(a)(1); Rowe v. State, 562 So.2d 121, 123 (Miss. 1990). By making such an inquiry, however, the defense necessarily opened a door to the prosecution that, until then, had remained closed. Unless the defendant elects to put his character in issue, the State is not free to engage in a freewheeling assault on the defendant's good name. M.R.E. 404. However, once the defense makes the decision to put the defendant's character as a law-abiding citizen in issue, the State is permitted to "rebut the same...." M.R.E. 404(a)(1). This right to rebut evidence of character is spoken of in Rule 405(a), which states that, once the defendant puts his character in issue, "[o]n cross-examination, inquiry is allowable into relevant specific instances of conduct." M.R.E. 405(a). A prior conviction of aggravated assault would seem, beyond question, to be a specific instance of conduct relevant, not to impeach Booker's truth-telling propensities under Rule 609, but to rebut Booker's evidence indicating that he was a peaceable, law-abiding citizen. Thus, the evidence of this prior conviction which, on its face, would seem almost certainly inadmissible for Rule 609 impeachment purposes, became admissible once the defense elected to demonstrate Booker's pristine past. The fact that this effort did not succeed worked no improper prejudice to the defense.

¶ 9. Our remarks are not intended to cast doubt on the motives or the abilities of defense counsel.

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Bluebook (online)
745 So. 2d 850, 1998 WL 850084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/booker-v-state-missctapp-1998.