Everett v. State

835 So. 2d 118, 2003 WL 139566
CourtCourt of Appeals of Mississippi
DecidedJanuary 21, 2003
Docket2001-KA-01356-COA
StatusPublished
Cited by18 cases

This text of 835 So. 2d 118 (Everett 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
Everett v. State, 835 So. 2d 118, 2003 WL 139566 (Mich. Ct. App. 2003).

Opinion

835 So.2d 118 (2003)

Lois EVERETT, Jr. a/k/a Loyce Everett, Jr. a/k/a Loyce Everett, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2001-KA-01356-COA.

Court of Appeals of Mississippi.

January 21, 2003.

*119 Leslie D. Roussell, Laurel, attorney for appellant.

Office of the Attorney General, by Deirdre McCrory, attorney for appellee.

Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.

CHANDLER, J., for the court.

¶ 1. Lois Everett was convicted of aggravated assault and possession of a firearm by a felon in the Wayne County Circuit Court. Everett has appealed his conviction raising the following issues:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO ALLOW THE DEFENDANT TO INTRODUCE EXTRINSIC EVIDENCE OF A PRIOR INCONSISTENT STATEMENT BY THE STATE'S WITNESS *120 MATTHEW CARL "NIKKI" HAYES.

II. THE TRIAL COURT VIOLATED THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY NOT USING THE PROPORTIONALITY ANALYSIS BEFORE SENTENCING THE DEFENDANT TO TWENTY-THREE YEARS IN PRISON.

Finding no error, we affirm.

FACTS

¶ 2. Lois "Bobo" Everett was indicted by a grand jury convened in Wayne County Circuit Court for the crime of aggravated assault and possession of a firearm by a felon. On March 10, 2001, a jury found Everett guilty and he was sentenced to twenty-three years' imprisonment.

¶ 3. On Saturday May 6, 2000, Everett, Bobby Shon Smith, and their two girlfriends went to the Cornfield Club, a local nightclub, located in Wayne County, Mississippi. Everett claims they were seated at a table when Anthony Sumlin walked by and spilled his drink on their table and on Everett's girlfriend. Choice words were exchanged between the two. Later in the night, around 11:30 p.m. a fist fight ensued, each claiming the first punch was thrown by the other party. Both testified that other patrons joined in the brawl. "Nikki" Hayes, the club's bouncer, broke up the fight.

¶ 4. Shortly thereafter, around 12:00 a.m., Sumlin said he was leaving the building when he heard someone yell, "he's got a gun!" Looking up, Sumlin said he saw Everett pointing a gun at him. He testified Everett fired a shot hitting him in his shoulder. The State's witness, "Nikki" Hayes, testified that he also saw Everett shoot Sumlin. Everett testified that he was driving out of the parking lot when he heard the gunshot. Defense witness, Bobby Shon Smith, testified that he saw Everett getting into his car when the shot was fired.

LAW AND ANALYSIS

I. WHETHER THE TRIAL JUDGE ERRED IN DENYING HAYES'S AFFIDAVIT INTO EVIDENCE.

¶ 5. Everett complains that the circuit judge committed reversible error in refusing to allow Hayes's unsworn affidavit into evidence. Everett contends that there were two inconsistencies between Hayes's testimony and his affidavit, and that he was entitled to show the jury the affidavit. Everett argues that the two inconsistencies of Hayes's testimony concern escorting the victim and the defendant outside the club and Hayes's location when the gun was fired.

¶ 6. "The trial court is granted substantial leeway in controlling the admission of evidence." Moran v. State, 822 So.2d 1074, 1077(¶ 8) (Miss.Ct.App.2002). "The discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence." Ivy v. State, 641 So.2d 15, 18 (Miss.1994). According to Rule 103, "error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." M.R.E. 103. Unless the trial judge's "discretion is so abused as to be prejudicial to the accused, this Court will not disturb the trial court's ruling on appeal." Hansen v. State, 592 So.2d 114, 132 (Miss.1991).

¶ 7. Mississippi Rules of Evidence 613 allows the impeachment of witnesses with their prior inconsistent statements in two ways. The first is by reading the statement to the witness and asking whether that statement accurately reflects the testimony given on the occasion when the *121 statement was recorded. M.R.E. 613(a). On the other hand, a party may use extrinsic evidence. M.R.E. 613(b). This can be done by putting on other witnesses who will introduce facts discrediting the previous witness's testimony. Rule 613(b) states:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).

¶ 8. Everett argues that Hayes made a prior inconsistent statement concerning the removal of the victim and defendant from the club. He points out that in Hayes's sworn testimony Hayes stated he removed Everett from the bar first and left Sumlin inside by the door for a while before removing him. Everett contends this is inconsistent with the affidavit Hayes gave Officer Robert Owen which stated Hayes grabbed both and took them outside the club.

¶ 9. On direct examination Hayes testified as follows:

Q. Okay. And what about "Bobo" [Everett]? What did you do with "Bobo"?
A. I got him outside the club
Q. Okay. What about Mr. Sumlin?
A. All right. I told—well, he was to the door. He got right to the front door.
Q. He was right there at the front door.
A. Yes, ma'am
Q. Okay. The person that you've identified as "BoBo," when you told him to leave the club, did he—what did he do then?
A. They went outside. We got him outside, and I told him he couldn't come back in the club because we was closing up, and the other guy was still—you know, Mr. Sumrall [Sumlin] still up in the club.
. . .
Q. Okay. And after that, what was the next thing that happened?
A. All right. I got them outside and really the fight was over with, you know.

¶ 10. On cross-examination Hayes testified as follows:

Q. In a statement that you gave to Robert Owen, you said that after the fight was broke up, you got Sumlin and Everett and took them both outside and then you didn't let nobody else into the club because the club was closing.
A. It was closing down.
Q. So is that right? Do you remember saying that to Mr. Owen?
A. Whatever I stated to him, that's what I told him.
Q. Well, I don't want nobody to think I'm trying to make you say something you're not, so I'm going to let you read it as soon as I find it.
[Pause in proceedings]
Q. It pretty much starts right there where the pen is (indicating). You can hold onto it. In that statement, that's the statement that you gave to Robert Owen when he interviewed you about what had happened?
A. Yes, sir.
Q. And in it, you said that you took Mr. Everett and Mr. Sumlin outside the club?
A. That's right.
Q. Okay. And you agree that you said that to him, that you took them out the club that night?
*122 A. I took them outside.
Q. That's all I wanted to talk about on that.

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Bluebook (online)
835 So. 2d 118, 2003 WL 139566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/everett-v-state-missctapp-2003.