Zoerner v. State

725 So. 2d 811, 1998 WL 319152
CourtMississippi Supreme Court
DecidedJune 18, 1998
DocketNO. 96-KA-00318-SCT
StatusPublished
Cited by20 cases

This text of 725 So. 2d 811 (Zoerner v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zoerner v. State, 725 So. 2d 811, 1998 WL 319152 (Mich. 1998).

Opinion

725 So.2d 811 (1998)

Ronald A. ZOERNER
v.
STATE of Mississippi.

NO. 96-KA-00318-SCT

Supreme Court of Mississippi.

June 18, 1998.
Rehearing Denied August 13, 1998.

*812 Mack A. Bethea, Gulfport, Attorney for Appellant.

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

Before PRATHER, C.J., and JAMES L. ROBERTS, Jr. and MILLS, JJ.

PRATHER, Chief Justice, for the Court:

I. INTRODUCTION

¶ 1. This case arises from a September 17, 1994, automobile accident on Lake Shore Road in Hancock County, in which a pedestrian (Marguerite Richardson) was killed. On May 1, 1995, Ronald A. Zoerner was indicted for felony driving under the influence and negligently causing Richardson's death. Zoerner was tried, convicted, and sentenced to twenty years in prison by the Hancock County Circuit Court in March, 1996. On appeal, Zoerner raises the following issues for consideration by this Court:

A. Whether the trial court erred in granting the State's motion to limit the cross-examination of the witness, Michael Moran, prohibiting inquiry as to these previous convictions and interest, bias or motive as such matters might affect his credibility?

B. Whether the trial court erred in allowing into evidence the results of the intoxilyzer tests in the absence of the testimony of the officer who calibrated the machine and over the objection of defense counsel; thereby, depriving the defendant of his constitutional right of confrontation?

C. Whether the trial court erred in allowing rebuttal testimony by the investigating officer concerning the results of a Mississippi Crime Lab test report; thereby depriving the defendant of his constitutional right of confrontation?

D. Whether the State failed to disclose possible exculpatory evidence in the nature of an eyewitnesses to the accident?

¶ 2. The dispositive issue in this case is the exclusion of the prior burglary convictions of the State's main witness, Michael Moran. This Court finds that the trial judge erred in excluding Moran's prior burglary convictions, because the circumstances surrounding the convictions were extremely probative of Moran's propensity to tell the truth and his bias or motivation to testify in favor of the State. For this reason, the case is reversed and remanded. The other issues raised by Zoerner are without merit, but will be addressed, to the extent that discussion of these issues could provide guidance on remand for a new trial.

II. LEGAL ANALYSIS

A. Whether the trial court erred in granting the State's motion to limit the cross-examination of the witness, Michael Moran, prohibiting inquiry as to these previous convictions and interest, bias or motive as such matters might affect his credibility?

¶ 3. Zoerner first contends that the trial judge erred by granting the State's *813 motion in limine to exclude evidence of Moran's three prior burglary convictions. The record reflects that, on January 13, 1995, Moran pled guilty to three counts of burglary. The State recommended that Moran be sentenced to ten years in prison on the first count, to run consecutively with seven years in prison on the second count, to run concurrently with seven years in prison on the third count, and that the sentence be suspended and Moran placed in the house arrest program, with three years probation to follow. The trial judge deferred sentencing, so that Moran could be evaluated for the house arrest program.

¶ 4. Approximately five months after Zoerner's accident, on February 7, 1995, the authorities took Moran from his cell and asked him to give a statement regarding Zoerner. Moran, who was awaiting sentencing on the burglary charges gave a recorded statement, which implicated Zoerner in Richardson's death. On March 29, 1995, the trial court determined that Moran was not eligible for house arrest, and Moran was placed on probation. On April 20, 1995, Moran violated the terms of his probation. His probation was revoked, and he was sent to the penitentiary.

¶ 5. The trial judge granted the State's motion to exclude the prior convictions and found as follows:

The Court finds that it is most significant that this potential witness pled guilty in January of '95 and received a recommendation from the State, and it was only subsequent to that that a statement was obtained, and simply because he did not qualify for house arrest, he was then placed on probation and ended up revoking that, and I understand has been sentenced to the penitentiary ...
Based on those specific facts, I don't think it is proper impeachment. Further, even if it may be proper it is the Court's opinion under [M.R.E.] 609 that the prejudicial effect would far outweigh its probative value. We are not going to get into it. You have made your objection and your request for the record.

¶ 6. On appeal, Zoerner contends that he should have been allowed to introduce the convictions, in order to impeach Moran's credibility and his motive for testifying. In support of this contention, he cites M.R.E. 616, which provides: "For the purpose of attacking the credibility of a witness, evidence or bias, prejudice, or interest of the witness for or against any party to the case is admissible." The State argues that Moran had already been sentenced for the other crimes, and had no motive to testify against Zoerner.

¶ 7. "M.R.E. 609 details the circumstances under which prior convictions may be used for impeachment purposes." Wilcher v. State, 697 So.2d 1087, 1094 (Miss.1997). For crimes such as burglary, that rule provides:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect on a party ...

M.R.E. 609(a)(1).

"The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused." Johnston v. State, 567 So.2d 237, 238 (Miss.1990). The discretion of the trial judge, however, must be exercised within the boundaries of the Mississippi Rules of Evidence. Johnston, 567 So.2d at 238. See M.R.E. 103(a), 104(a).
M.R.E. 611(b) allows wide-open cross-examination so long as the matter probed is relevant. M.R.E. 611(b), Comment; State Highway Com'n of Miss. v. Havard, 508 So.2d 1099, 1102 (Miss.1987). A judge may limit cross-examination to serve one of the purposes stated in M.R.E. 611(a), to wit: to make the examination effective for ascertaining the truth, to avoid waste of time, and to protect witnesses from harassment or undue embarrassment. M.R.E. 611(b), Comment; M.R.E. 611(a). See also *814 Sayles v. State, 552 So.2d 1383, 1386 (Miss. 1989).

Johnston v. State, 618 So.2d 90, 93-94 (Miss. 1993).

¶ 8. In this case, Moran faced three counts of burglary. He cooperated with the police in Zoerner's case, and he was only sentenced to probation. Moreover, Moran was the State's key fact witness. His testimony is the only evidence that Zoerner drove negligently the night Richardson was killed, and his story is uncorroborated on many other points.

¶ 9.

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Bluebook (online)
725 So. 2d 811, 1998 WL 319152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zoerner-v-state-miss-1998.