IN THE MISSISSIPPI COURT OF APPEALS
IN THE MISSISSIPPI COURT OF APPEALS
No. 2008-KA-00844-COA
HARVEY WILLIAMS, JR
AKA SMOKIE APPELLANT
Vs.
STATE OF MISSISSIPPI APPELLEE
BRIEF OF APPELLANT
Appeal from the Circuit Court of Hinds County, Mississippi
Jane E. Tucker (MS Bar No. 1786)
235 Melbourne Road
Jackson, MS 39206
(601) 291-2047
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of this Court may evaluate possible disqualifications or recusal.
Harvey Williams, Jr.
Appellant/Defendant
Lula Anderson
Christopher Graves
Trial attorneys for Defendant
Faye Peterson
Rebecca Wooten Mansell
Marvin Sanders
District Attorney and Assistant District Attorneys
Jim Hood
Attorney General
The State of Mississippi
Appellee
Honorable L. Breland Hilburn
Circuit Court Judge, Hinds County, Mississippi.
SO CERTIFIED, this the 17th day of February, 2009.
__________________________ Jane E. Tucker
TABLE OF CONTENTS
Certificate of Interested Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii
Statement of Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Law and Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
TABLE OF AUTHORITIES
Bailey v. State, 952 So.2d 225 (Miss. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Banks v. State, 631 So.2d 748 (Miss.1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Beauchamp v. State, 128 Miss. 523, 91 So. 202 (1922) . . . . . . . . . . . . . . . . . . . . . . . . .32
Brown v. State, 690 So.2d 276 (Miss.1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Chase v. State, 645 So.2d 829 (Miss.1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Chambers v. Mississippi, 410 U.S. 284 93 S.Ct. 1038, 1047 (1973) . . . . . . . 30, 32-33, 48
Clark v. State, 123 Miss. 147, 85 So. 188 (1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Cleveland v. Egeland, 497 N.E.2d 1383 (Ohio 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Clinskale v. Carter, 375 F.3d 430 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41
Cox v. Donnelly, 387 F.3d 193 (2d Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142 (1986) . . . . . . . . . . . . . . . . . . . . . . .15
Davis v. State, 970 So.2d 164 (Miss.App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
De La Beckwith v. State, 707 So.2d 547 (Miss. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . .16
Echols v. State, 99 Miss. 683, 55 So. 485 (1911) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Flowers v. State, (Flowers I) 773 So.2d 309 (Miss. 2000) . . . . . . . . . . . . . . . . . . . . . . 29
Flowers v. State (Flowers II), 842 So.2d 53 (Miss. 2003) . . . . . . . . . . . . . . . . . . . . 26, 29
Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369 (1933). . . . . . . . . . . 18
Fuselier v. State, 468 So.2d 45, 56 (Miss. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Galloway v. State, 604 So.2d 735 (Miss. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Gates v. State, 484 So.2d 1002 (Miss. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Harrison v. State, 635 So.2d 894 (Miss. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Hentz v. State, 542 So.2d 914 (Miss. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Hester v. State, 841 So.2d 158 (Miss.App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . .31
Hickson v. State, 472 So.2d 379 (Miss. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Holly v. State, 671 So.2d 32 (Miss.1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727 (2006) . . . . . . . . . . . . . . . .32
Houston v. State, 752 So.2d 1044 (Miss.App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . 16
Jones v. State, 956 So.2d 389 (Miss. App. 2003)
cert. denied 860 So.2d 1223 (Miss. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
King v. State, 994 So.2d 890 (Miss.App. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Leverett v. State, 112 Miss. 394, 73 So. 273 (1916) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
McGee v. State, 953 So.2d 241 (Miss.App. 2005) aff’d 953 So.2d 211
(Miss. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
McDonald v. State, 285 So.2d 177 (Miss. 1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Michigan v. Lucas, 500 U.S. 145, 111 S.Ct. 1743,
114 L.Ed.2d 205 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 21
Mott v. State, 123 Miss. 729, 86 So. 514 (1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Muse v. State, 158 Miss. 449, 130 So. 693 (1930) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Palmer v. State, 939 So.2d 792 (Miss.2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Pannell v. State, 455 So.2d 785 (Miss.1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
People v. Sturm, 129 P.3d 10 (Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Randall v. State, 806 So.2d 185 (Miss. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Raygoza v. Hulick, 474 F.3d 958 (7th 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Shaffer v. State, 740 So.2d 273 (Miss. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
State v. Hall, 665 N.E.2d 728 (Ohio App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
State v. Ingram, 2005 WL 2128959 (N.C.App.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Stewart v. Wolfenbarger, 468 F.3d 338 (6th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . .41
Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). . . . . . . . . ..22
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). . . . . . . . . . . . . . . . . .35, 42 Stringer v. State, 500 So.2d 928 (Miss. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Tanner v. State, 556 So.2d 681 (Miss. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646 (1988) . . . . . . . . . . . . . . . . . . . . . . . .16, 17
Tran v. State, 681 So.2d 514 (Miss.1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..46
Traylor v. State, 582 So.2d 1003 (Miss. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
United States v. Benedetti, 433 F.3d 111 (1st Cir.2005) . . . . . . . . . . . . . . . . . . . . . . . . . 45
United States v. Blueford, 312 F.3d 962 (9th Cir.2002) . . . . . . . . . . . . . . . . . . . . . . . 21-23
United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984) . . . . . . . . . . . . . . . . . . . . . .35
United States v. Hernandez-Bermudez, 857 F.2d 50 (1st Cir.1988) . . . . . . . . . . . . . . . ..45
United States v. Kojayan, 8 F.3d 1315 (9th Cir.1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 22
United States v. Ploeger, 428 F.2d 1204 (6th Cir. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . 36
United States v. Udechukwu, 11 F.3d 1101 (1st Cir. 1993) . . . . . . . . . . . . . . . . . . . . 21, 23
Washington v. State, 307 So.2d 430 (Miss.1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). . . . . . . . . . 18
Wells v. State, 698 So.2d 497 (Miss.1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
West v. State, 553 SO.2D 8 (Miss. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Wilkins v. State, 603 So.2d 309 (Miss. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Younger v. State, 931 So.2d 1289 (Miss. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
STATEMENT OF ISSUES
1. The trial court erred in refusing to allow Anthony Herrington to testify that Calvin Younger was carrying a gun just prior to being shot.
2. The state committed prosecutorial misconduct when it argued that the only witness who saw Calvin with a gun was the defendant when the prosecution knew that Herrington had seen Calvin with a gun.
3. The prosecution committed other misconduct the effect of which was to deny Harvey Williams his right to due process and a fair trial.
4. The trial court erred in refusing to allow the defense to question witnesses about Calvin Younger’s history of violence.
5. The trial court erred in disallowing the testimony of Freda Luckett.
6. The trial court erred in failing to grant a continuance where a) the defense needed more time to locate crucial witnesses and b) the prosecution was providing discovery not only right before trial but during trial.
7. The trial court erred in refusing to allow the defense to cross-examine Donte Hill about a statement he gave to Cynthia Stewart and in allowing the prosecution to admit a prior inconsistent statement. The prosecution later committed further misconduct by arguing that Hill’s prior inconsistent statement was substantive evidence of guilt.
8. Defense counsel provided ineffective assistance in failing to give the prosecution more complete discovery with regard to defense witnesses.
9. The trial court erred in holding that if Cassandra Younger testified she could be impeached with a video in which both she and Harvey were playing roles. The video was more prejudicial than probative inasmuch as it portrayed Harvey and Cassandra playing characters at a costume party. Furthermore, the prosecution tendered it to the defense for the first time just prior to Cassandra’s taking the stand.
10. The trial court’s failure to apply the rules evenhandledly to the prosecution and defense denied Harvey Williams the right to due process and a fair trial.
11. The trial court erred in giving a flight instruction
12. Harvey Williams’ conviction and sentence must be reversed because of cumulative error.
STATEMENT REGARDING ORAL ARGUMENT
Harvey Williams requests oral argument in this case. Given the large number of issues in this case and the serious allegations of prosecutorial misconduct contained herein, oral argument may be useful to clarify any questions the Court may have with regard to those issues or the facts.
STATEMENT OF THE CASE
Harvey Williams Jr. is a lifelong resident of Jackson. In 2003 he was twenty-seven years old and working as a concert promoter; he also purchased cars from auctions and customized them for resale. T. 525- 26. He lived with his girlfriend of ten years Cassandra Younger and their children. T. 524. Cassandra had a brother who was a career criminal named Calvin Younger. Calvin, who was only twenty-six in 2003, had been to prison before (in 1996 he was convicted of aggravated assault on a man named Jacomine Hodge and was sentenced to ten years with three suspended[1]) and was known to get violent over insignificant things. CP. 94. He had also kidnapped Anthony Ray Dixon from the mall and left him for dead. T. 556.
In May 2003, Calvin robbed Harvey and Cassandra at gunpoint and was facing a return to prison as a result. While in jail on the armed robbery charges and later, after having posted bail, Calvin made it known that he was going to kill Harvey for having Calvin locked up. About a week after Calvin was released from jail on bond, Harvey and Calvin spotted each other in a nightclub parking lot. Calvin would end up dead. Harvey’s defense was that the shooting was done in self-defense; however, the court’s rulings prevented Harvey from putting on his theory of the case and the jury heard very little about the robbery, the multiple threats that Calvin made against Harvey after his arrest, Calvin's lengthy history of crime and violence or even that Calvin was turned away from the nightclub (just minutes before the shooting) because he was carrying a gun.
Since Williams never got to present his defense to the jury, it is no surprise that Williams was convicted of murder. CP. 81.
The indictment and pre-trial:
Williams was indicted in December 2003, for the murder of Calvin Younger, a violation of M.C.A. § 97-3-19(1). CP. 6; RE. 15. Williams hired Richard Rehfeldt as his attorney (CP. 7) and was allowed to remain free before trial after posting a bond of $50,000. CP. 8.
Some two years later, Rehfeldt withdrew as Williams’ attorney. CP. 10, 13. On February 22, 2006, the trial court appointed Lula Anderson to represent Williams at trial. The trial was held in April 2007. The jury returned a verdict of guilty of murder. CP. 81; RE. 16. Harvey Williams was sentenced to life imprisonment. CP. 82; RE. 17.
The trial:[2]
In May 2003, Calvin Younger called Harvey Williams and said he wanted to purchase a pair of rims that Harvey was selling. T. 545. Calvin, who was calling from Harvey’s house (Harvey wasn’t home but Cassandra was) insisted that Harvey let him take the rims and pay for them later. T. 548. Harvey refused and Calvin hung up on him. T. 549. Later, Harvey arrived at his house. He could tell something was amiss because the gate was ajar. T. 549. When Harvey opened the door, he could see Calvin standing in the hallway. T. 550. Cassandra came out of one of the bedrooms carrying the baby and with a toddler holding onto her leg. Her hair was a mess and her makeup smeared. T. 551. Harvey walked past Calvin toward Cassandra. As he did so, Calvin told Harvey “You must think I’m a punk.” T. 552. Harvey turned toward Calvin and saw that Calvin had a .9 millimeter pointed at Harvey’s face. Calvin continued to cuss and rant about how Harvey must think he’s a punk and a weak n_____. Calvin then said he was taking the rims, that he would shoot Harvey. T. 552-53. Calvin took the rims and left but only after telling Harvey that he would shoot him. T. 555.
Harvey pressed charges against Calvin and the police arrested Calvin about three weeks later. T. 556, 559-60, 639, 641.[3] Until Calvin was arrested, Harvey had to be careful everywhere he went because Calvin was telling Cassandra that he was going to shoot up Harvey’s house. T. 560. While Calvin was in jail, he told one of the jailers[4] that he was going to do something to Harvey Williams and that he was going to catch a case.[5] T. 650-52.
Calvin was released from jail on June 13, 2008. T. 642. Harvey, however, was not told that Calvin was out. T. 537.
On June 22, 2003, in the parking lot of Jay’s Lounge, Harvey and Calvin ran into each other for the first time since the armed robbery. Harvey was a regular at Jay’s Lounge and, because he was a close friend of the owner of the club, he was considered a VIP. T. 501-502. [6] As a VIP, Harvey was allowed to park by the front door. T. 504, 533.
Calvin, who was not known to frequent Jay’s,[7] was already at Jay’s Lounge with his cousins Fletcher Watts and Joe Pugh (Pugh was a drug dealer)[8] when Harvey drove up. However, Calvin was in the parking lot heading toward the club next door (Charlie’s); he had just been denied entrance into Jay’s because he was carrying a gun. T. 482, 682. (For reasons explained later, the jury did not get to hear that Calvin was turned away from Jay’s because he was carrying a gun).
Harvey was driving his car with his friend Donte Hill in the passenger seat when they decided to go to Jay’s. One of the driveways into the parking lot was blocked off and the lot was full of cars. T. 532, 537. Harvey stopped in the turn lane and put on his flashers thinking that one of the security guards would recognize his car and unblock the driveway to let him in. T. 532. When that didn’t work, Harvey got out of the car to alert someone to unblock the driveway. T. 533. As he walked across the street and toward a security guard standing in the grass (T. 535-536), he heard someone yelling at him. He recognized Calvin’s voice but had a hard time believing that it could be Calvin because as far as Harvey knew, Calvin was still in jail. T. 537. He looked toward the voice and saw Calvin striding toward him through the rows of cars in a pace between walking and running. T. 539, 541. Calvin was yelling “What’s up now, mother fucker, what’s up now?” T. 540.
As one of Calvin’s cousins testified, Calvin and his cousins were in the parking lot when they spotted Harvey’s car in the street. T. 177. In fact, Calvin said “There goes Smokey” as Harvey’s car stopped in the middle of the street. T. 227, 257.[9] Calvin headed towards Harvey’s car. T. 177. Although Calvin’s cousins insisted Calvin did not have a gun on him when he was shot, both testified that Calvin had a cell phone in his hand. T. 192, 235. After Calvin was shot, one of the cousins took the phone. T. 192. So, when the police got to scene, they found nothing in Calvin’s hands. T. 388, 408.
As Calvin got near Harvey, he reached into his back pocket and pulled out a pistol. T. 542. Harvey knew Calvin had threatened to kill him because Harvey had had Calvin arrested. T. 542. When he saw Calvin pull out his gun, Harvey reacted by pulling his own weapon and shooting Calvin. T. 561. [10] Harvey then walked back to his car, motioned for Hill to move to the passenger’s seat and drove to his grandmother’s house about a mile away. T. 565-566. He didn’t stay at Jay’s and wait for the police because he didn’t know who was with Calvin and, thus, didn’t know if he’d be safe there. T. 566.
The pictures of Calvin’s body show him laying in the street. Exs. 2, 3. The evidence is uncontradicted that when Calvin first spotted Harvey, he was in the parking lot (T. 177; 230) which could mean only that Calvin, having spotted Harvey, walked towards him. This sequence of events was witnessed by Anthony Herrington who was employed as security at Jay’s. T. 488. He knew both Calvin Younger and Harvey Williams by sight without being friends with either. T. 489. That night, Herrington saw Harvey Williams get out of his car and walk toward the front door of Jay’s. T. 493. Herrington started to walk toward Harvey. T. 494. Calvin was in the parking lot of Charlie’s next door. T. 494.[11] (Calvin headed to Charlie’s after Herrington refused to allow Calvin to enter Jay’s because he was carrying a gun but the jury did not get to hear this evidence. See Issue no. 1, below). Calvin got to a certain point and turned around and started yelling. T. 495. Herrington saw Calvin motion towards his back. T. 496. Shortly after that, Herrington heard shots. T. 496. Because the parking lot was filled with cars, Herrington could not see what happened after Calvin motioned towards his back. Herrington went into Jay’s to secure the club. T. 497. When he came back outside he saw about two or three policemen in the parking lot. T. 497. They were in the area where the body was and not looking between the cars. T. 498.
Although the parking lot was filled with some 200 plus people (and their cars) when the police got there (T. 207, 358), the police interviewed only two people[12] who claimed they were in a position to see exactly what happened and those people were Calvin’s cousins who both insisted that Calvin did not have a gun that night. T. 407. They recovered no evidence. T. 362-64, 408.
Mike Childers, the supervisor of crime scene investigations, got to the scene after the police tape was already up. He stated that there were a couple hundred or more people standing around the scene. T. 358. Childers looked around for spent casings, a gun, places where a bullet hit a car but could find nothing. T. 362-64.[13] He testified that it was unusual not to find casings. T. 364. Since Younger was shot five times with a semiautomatic nine millimeter, there should have been five spent cases on the ground. T. 387.[14] In a high traffic area, though, the casings could have been lost. T. 412.
Donte Hill was called by the prosecution and he testified that he and Harvey were riding around in Harvey’s car. T. 291. Harvey was driving. They headed towards Jay’s with the intent only of having a good time. T. 291, 307. Harvey wasn’t anticipating having to fight someone. T. 292. When they got to the club, the entrance was blocked. T. 393. Harvey stopped the car in the turning lane and stated something about spotting Jay. T. 293. Harvey then exited the car telling Hill to “hold it down” which Hill took to mean that Harvey was telling him to watch the car, take care of things. T. 323, 344-45. Hill, however, had given a statement to the police in which he said that Harvey told him to “hold his head down”. T. 323. On the witness stand, Hill insisted that the police “reworded it or whatever” when they wrote “hold your head down” rather than “hold it down.” T. 325. After Harvey got out, Hill heard gunshots. The Harvey got back into the car and stated that “that dude tried to kill me.” T. 298. Hill didn’t hear whether there was any shouting before the gunshots because he is deaf in one ear. T. 339.
Dr. Steven Hayne performed the autopsy on the body of Calvin Younger. T. 422. There were five gunshot wounds two of which were lethal. T. 423. Dr. Hayne did not determine the order in which the bullets were fired. T. 437, 441, 445. One gunshot hit in the mid right chest area and traveled through the heart. T. 423. Hayne could not rule out the possibility that the shooter and the deceased were facing each other when this shot was fired. T. 435-36. Another bullet traveled from the left back and through the left lung. T. 424. Another shot entered the left thigh and traveled upwards. T. 424. Another shot was to the right arm and another was in the upper back right arm. T. 424-25. Roughly speaking, then, one shot was from the front, two entered from the back (the bullet that entered the left back and through the left lung and the bullet that went through the upper back right arm), and two from the side (the bullet that went through the right arm and the bullet that entered the left thigh). The prosecution asked Dr. Hayne whether it was safe to characterize the majority of the bullets as having been shot “from either the back or at an angle from the side.” T. 435. Hayne agreed. T. 435.
Assuming the first shot was the one to the chest, Younger could have reacted in several ways. “I think there would be an immediate reaction,” Hayne opined. T. 443. But, “he may not necessarily fall. A person receiving a gunshot wound to the heart may fall or he may retain his standing position or he may even flee a scene too.” T. 443. In any case, there could have been some movement if the shot to the heart was the first shot.
SUMMARY OF THE ARGUMENT
This was a self defense case. But between the court’s rulings and the egregious misconduct committed by the prosecution, Harvey Williams was not able to put his theory of the case before the jury. The issues are as follows:
Anthony Herrington: The defense called Jay’s Lounge security guard Anthony Herrington as a witness at trial. During trial, both the prosecution and the defense learned for the first time that Herrington could testify that he would not let Calvin Younger into Jay’s Lounge just prior to Calvin getting shot because Calvin was carrying a gun. Herrington was the only other witness besides Harvey Williams who could place a gun in Younger’s possession around the time of the shooting. The evidence shows that Younger had something in his hand when he got shot (Younger’s cousins claimed it was a cell phone which they removed after Younger was shot). The trial court refused to let this evidence in on the grounds that it was not disclosed to the prosecution before trial.
Prosecutorial misconduct – lying to the court about the facts concerning whether Younger had a gun: ADA Mansell interviewed Herrington during the trial and reported to the court that Herrington was saying that Younger had a gun on him just prior to being shot. Mansell successfully kept this evidence from the jury. She nonetheless argued in closing that Harvey Williams was the only person at Jay’s Lounge who saw Younger with a gun. In so doing, Mansell lied to the tribunal about a critical fact.
Prosecutorial misconduct - other: The prosecution repeatedly interjected improper comments and questions into the trial. These range from repeatedly referring to Jay’s Lounge as Killer Jay’s to asking Harvey Williams about the number of girlfriends and illegitimate children he had to mischaracterizing the trajectory of the bullets that hit Calvin Younger to lying about the fact of Calvin Younger’s prior record. Concerning this last, the prosecution argued during closing statements that if Younger had been as violent as the defense claimed, why hadn’t he been convicted of anything? As it turns out, the Hinds County District Attorney’s office convicted Younger of aggravated assault back in 1996. So, again, the prosecution misled the jury about an important fact.
Refusal to allow the defense to present evidence of Younger’s history for violence: In self defense cases, the defendant has a right to adduce evidence relevant on the issue of who was the initial aggressor. In this case, there was plenty of evidence that Calvin Younger had a reputation for violence, had been convicted of aggravated assault, had threatened to kill Harvey Williams for having had Younger arrested, etc. The trial court, however, refused to allow the defense to adduce this evidence. For instance, Younger’s cousins testified that Younger was not a violent man. When the defense tried to cross-examine them about whether they knew Younger had committed specific acts of violence (in order to show that their testimony that Younger was not violent was not credible) the trial court refused to allow the questioning.
Freda Luckett: Freda Luckett bumped into Calvin Younger just prior to his being shot and Younger told her that he was going to kill Harvey Williams. The prosecution objected to this evidence for several reasons arguing that 1) it was hearsay, 2) the threat was not communicated to Harvey and 3) the defense had not provided the prosecution with a transcribed statement that Freda gave to Cynthia Stewart days after the shooting. The trial court excluded this evidence even though 1) hearsay is admissible to show the decedent’s’ state of mind in a self defense case, 2) the fact that the threat is not communicated is not grounds for excluding the statement where it shows the decedent’s state of mind and 3) the prosecution had ample notice of Freda’s statement: she told the police right after the shooting, the defense disclosed the substance of her testimony in discovery and the prosecution interviewed her in advance of trial.
Failure to grant a continuance: The prosecution was providing discovery to the defense just before and throughout the trial. Meanwhile, defense counsel Lula Anderson was tied up in several trials for the two months leading up to Harvey Williams’ trial and, on the day of trial, still had not located two witnesses who could testify regarding Calvin Younger’s history of violence. Anderson asked for a three week continuance to properly prepare her client’s defense. Because this was an older case, the trial court denied the motion. The trial court managed to get the case off its docket but in such a way as to deprive Harvey Williams of his right to due process and a fair trial.
Donte Hill: The trial court ruled that the defense could not cross-examine Donte Hill with a prior statement he had given to Cynthia Stewart because the defense had not tendered a copy of the audiotape to the prosecution. The trial court then allowed the prosecution to introduce a prior inconsistent statement even though Hill admitted having made the statement. The prosecution later argue that Donte’s prior inconsistent statement was evidence of Williams’ guilt.
Ineffective assistance: To the extent that the trial court ruled that any of the defense’s evidence was inadmissible due to discovery violations, defense counsel wads ineffective in failing to timely provide the evidence in discovery.
Cassandra Younger: Harvey Williams planned to call his girlfriend Cassandra Younger, Calvin’s sister, to the stand to testify about how Calvin had robbed them, threatened to kill Harvey and about his reputation for violence. The prosecution asked for a ruling that if Cassandra testified that they be permitted to impeach her using a video in which Harvey and Cassandra were playing the roles of pimp and prostitute. This evidence was clearly more prejudicial and probative and the court’s ruling that Cassandra could be impeached with the video was error.
The trial court’s uneven application of the rules: Both the prosecution and the defense were guilty of providing discovery at the last minute. The trial court, though, allowed the prosecution to use all of its late-tendered evidence but excluded everything that the defense did not provide well before trial. These rulings were so one-sided and unfair as to constitute a separate issue.
The flight instruction: It is well recognized that the defendant’s flight has very little probative value and the Mississippi Supreme Court has stated that it is reversible error to give a flight instruction in a self-defense case and/or where the flight is explained. Despite the fact that this was a self-defense case in which Harvey Williams testified that he left the scene because he did not know who was there who might exact revenge on Younger’s behalf, the trial court erroneously gave a flight instruction.
Cumulative error: It is Harvey Williams’ contention that between the exclusion of Herrington’s testimony and then the prosecution’s lying to the tribunal about the non-existence of witnesses who had seen Calvin Younger with a gun, this Court has no choice but to reverse. However, should the Court disagree, it should still reverse given the numerous errors in this case and the fact that they all had the effect of denying Harvey Williams his right to present a defense.
LAW AND ARGUMENT
1. The trial court erred in refusing to allow Anthony Herrington to testify that Calvin Younger was carrying a gun just prior to being shot. Herrington was the only witness who could corroborate Harvey’s testimony that Calvin had a gun.
The first witness called by the defense was Anthony Herrington. T. 469. The prosecution objected to Herrington’s testifying claiming that he had not been listed on any of the lists provided by the defense. T. 471. Defense counsel was able to show a list containing Herrington’s name that had been hand delivered to the District Attorney’s office on March 29, 2007. T. 470, 473. The prosecution stood by its claim that it never received notice that Herrington would testify. Assistant District Attorney Rebecca Mansell told the court that the DA’s office had recently fired a secretary and that’s why her co-counsel, Marvin Sanders, may not have gotten the list. T. 471. The court ruled that under the circumstances the prosecution would be allowed to talk to Herrington as well as another witness Johnny Earl Moore Pennington. T. 473-74.
A recess was taken during which ADA Mansell interviewed Herrington. T. 476. Mansell reported that Herrington told her that, prior to the shooting, Calvin Younger was kicked off the premises of Jay’s Lounge because he was carrying a gun. T. 481.
Defense counsel Lula Anderson also interviewed Herrington that day. Supp. T. 6. Herrington told Anderson that Younger had tried to get into Jay’s Club while carrying a gun. Herrington told Calvin he could not enter the club with a gun. T. 482. Calvin then left the entrance to Jay’s and headed north on Medgar Evers to Charlie’s, the club next door. T. 682. Herrington saw Harvey get out of his car and walk toward the front door of Jay’s. Calvin was moving toward Harvey and Herrington saw Calvin reach towards his back as if toward the gun. T. 483.
Despite having interviewed Herrington, the prosecution argued that Herrington should be allowed to testify only as to what the defense had previously provided in discovery (of course, the prosecution insisted they never got the discovery which is why they wanted to interview Herrington). T. 483-84.[15] The court ruled that the defense had tendered discovery to the prosecution of March 29, 2007, and listed Herrington as a witness but that since the discovery did not contain anything about Calvin’s having been turned away from Jay’s because he was carrying a gun, the defense could not elicit this testimony from Herrington. T. 484, 684.
Herrington testified but was only allowed to state that he heard Calvin yelling, saw him reach toward his back pocket and then heard shots being fired. T. 498. When the defense asked Herrington whether he knew what was in Younger’s back pocket, the prosecution’s objection was sustained. T. 498. Defense counsel made a proffer of Herrington’s excluded testimony at the conclusion of the evidence. T. 682. The jury never got to hear that Calvin was turned away from Jay’s because he was carrying a gun.
Of course, the excluded testimony was extremely important to Harvey’s defense. Without Herrington, the only person who testified that Calvin was armed was Harvey. The jury could well have discounted Harvey’s testimony as self- serving. Herrington was a disinterested witness who encountered Calvin carrying a gun just prior to Calvin’s being shot. The only other witnesses at trial who could say whether Calvin was carrying a gun when he was shot were Calvin’s cousins, Fletcher Watts and Joe Pugh. They both insisted at trial that Calvin did not have a gun on him when he was shot. T. 220-221. Indeed, the prosecution specifically asked Pugh if they had tried to get into Jay’s and been denied entrance and Pugh said no. T. 224.[16] . The defense was not allowed to impeach Pugh with Herrington’s testimony.
However, Watts and Pugh both testified that at the time Calvin was shot, Calvin had Pugh’s phone in his hand. T. 192, 235. After Calvin was shot, Watts testified, Pugh took the phone. T. 192. So, when the police got to scene, they found no cell phone. T. 388, 408.[17]
Clearly, then, Calvin had something in his hand when he was shot – something that was removed by Joe Pugh before the police arrived. The only evidence presented at trial that this was a gun was provided by Harvey. Thus, in closing, the prosecution argued that there were some 200 people outside the club that night and “The only person that supposedly saw Calvin Younger with a gun was, guess who, a convicted liar.” T. 698.[18]
In excluding the evidence, the trial court never first determined whether some lesser sanction would have been justified under the circumstances. It is well established that the Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant a “meaningful opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S. 319, 324; 126 S Ct 1727; 164 L.Ed.2d 503 (2006). See also Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142 (1986). The Mississippi Court of Appeals has held that when a trial court is faced with excluding defense witnesses because of a procedural violation, it should not automatically exclude the testimony. Houston v. State, 752 So.2d 1044, 1047 (Miss.App. 1999). “When the issue before the court involves the potential loss to the defendant of the vital right to call witnesses on his behalf, we think it proper for the trial court to consider whether one of the lesser sanctions in the rule might not adequately deal with the defendant's lack of diligence.” Id. “If ‘the omission was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence,’ it would be entirely appropriate to exclude the witness’ testimony.” De La Beckwith v. State, 707 So.2d 547, 575 (Miss. 1997) quoting Taylor v. Illinois, 484 U.S. 400, 413, 108 S.Ct. 646 (1988).
In Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), the United States Supreme Court recognized the constitutional significance of a defendant's presenting exculpatory evidence, but also acknowledged the states' interests in conducting orderly criminal trials and creating enforceable rules for identifying and presenting evidence. Taylor, 484 U.S. at 410-11. While the Court refused to “draft a comprehensive set of standards to guide the exercise” of a trial court's discretion to sanction a party for failure to comply with discovery rules, the Court identified a number of considerations germane to whether a sanction passed constitutional muster. Taylor, 484 U.S at 414-15. These considerations include the defendant's right to present favorable evidence, the integrity of the adversarial system, the interest in administering justice fairly and efficiently, potential prejudice to the truth-seeking role of criminal trials, the reasons for failure to comply with discovery rules, and the relative ease of compliance with the rules. Taylor, 484 U.S. at 414-16.
Subsequent to Taylor, the Supreme Court clarified that preclusion of witnesses or evidence for every violation of a discovery rule was not required. Michigan v. Lucas, 500 U.S. 145, 152, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991). “Rather, we acknowledged that alternative sanctions would be ‘adequate and appropriate in most cases.’ ” Id. (quoting Taylor, 484 U.S. at 413). The Lucas Court pointed out Taylor 's recognition of “circumstances in which preclusion was justified because a less severe penalty ‘would perpetuate rather than limit the prejudice to the State and the harm to the adversary process.’ ” Id. (quoting Taylor, 484 U.S. at 413). The circumstances of Taylor permitted a harsh sanction because the defense willfully failed to comply with discovery rules in order to gain strategic advantage over the prosecution. See id. (discussing Taylor, 484 U.S. at 417).
Whether Calvin Younger was armed with a cell phone or a gun at the time he was shot was something the jury had to decide. The trial court’s ruling, however, meant that they decided it without having been allowed to hear the only unbiased witness on this issue.
The record is clear that the evidence Herrington had to offer regarding Calvin’s being armed was not kept from the prosecution as a strategic move by the defense. The defense learned of the availability of this testimony only when the prosecution did. Furthermore, once the trial court allowed the prosecution to interview Herrington, there was no reason to refuse to allow Herrington to testify as to all he knew relevant to the issues at trial. If the prosecution felt that being allowed to interview Herrington was insufficient, it should have requested a continuance. What the court did instead – excluding some of the most important evidence available – denied Harvey Williams his right to due process and a fair trial.
“The fundamental basis upon which all rules of evidence must rest-if they are to rest upon reason-is their adaptation to the successful development of the truth.” Funk v. United States, 290 U.S. 371, 381, 54 S.Ct. 212, 215, 78 L.Ed. 369 (1933). Where the court’s rulings are such that the defendant cannot put on his case, the defendant’s Sixth Amendment rights are violated. Hentz v. State, 542 So.2d 914, 916 (Miss. 1989); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).
In this case, the trial court actually utilized one of the remedies provided for discovery violations when it allowed the prosecution to interview Herrington before he testified. There was no reason, then, to exclude the most important evidence Herrington had to offer. In doing so, the trial court denied Harvey Williams the right to present his theory of the case and thereby denied him the right to due process and a fair trial. The only remedy is for this Court to reverse and remand the case for a new trial at which a jury can hear all of the evidence.
2. The state committed prosecutorial misconduct when it argued that the only witness who saw Calvin with a gun was the defendant when the prosecution knew that Herrington had seen Calvin with a gun.
During closing argument, the ADA Mansell told the jury that “The only person that supposedly saw Calvin Younger with a gun was, guess who, a convicted liar.” T. 698. She later told the jury that Calvin Younger had no gun. “Out of the 200 or so people out there, you don’t think there’s not one other person other than Mr. Williams. He’s the only one that’s come to testify that Calvin Younger had a gun. He’s it. Out of those 200 people, he’s it.” T. 706 (emphasis added). This, of course, was not true. Although Anthony Herrington was not allowed to testify that he saw Calvin with a gun just prior to Calvin’s being shot, Mansell knew that Herrington could testify thusly. As set forth above, Mansell interviewed Herrington during trial. T. 476. After the interview, Mansell told the court that Herrington reported that Calvin Younger was kicked off the premises of Jay’s Lounge just prior to the shooting because he was carrying a gun. T. 481.[19]
Her argument that Harvey Williams was the only person who could put a gun in Calvin’s hands was an out-and-out lie.
Assistant District Attorney Marvin Sanders used the same argument when he made the prosecution’s final closing statement. “We have to prove that [Harvey Williams’ murdered Calvin Younger. Was it in self-defense? There’s no testimony to support that beyond what Harvey Williams’ self-serving statements are. Who else said they saw a gun? Who else?” T. 738 (emphasis added). A minute later, Sanders argues, “They did not provide anyone with any evidence to support Harvey Williams’ contention.” T. 739. The defense objected and was overruled. T. 739. Sanders then states, “I’m sorry. Strike that. They did not provide anyone with evidence to support Harvey Williams’ contention.” T. 739.
Mansell also argued that the defense was trying to make Calvin out to be a “bad guy.”
You know, they want to base this whole case on Calvin Younger was such a bad guy. He deserves to die. And if y’all go back there and think that if a person is bad and they deserve to die, that’s what they want you to believe. Think about this: If Calvin Younger were such a bad person, he’d been shooting at people and robbing people and handling guns all his life, how hard would it have been to get a conviction of that. If it’s so widely known, why didn’t they put one person on that - - -
T. 698-99. At this point, the defense objected and the objection was sustained. T. 699. But a moment later, Mansell argues, “There is no evidence whatsoever of Mr. Younger’s bad character except from the defendant.” T. 699. At this point, the defense requested a mistrial which, of course, was overruled. T. 699.
These arguments, too, were totally out of bounds. Younger had been convicted by a jury in 1996 of aggravated assault of Jacomine Hodge. Whether Mansell knew this or not, she should have known it since it was the Hinds County District Attorney’s office that convicted Younger. And even if she hadn’t known about the conviction, given the prosecutions’ vigorous objections to the defense’s putting on any evidence of specific instances of bad conduct by Younger, the argument was totally out-of-bounds. The prosecution can’t successfully prevent the defense from putting on certain evidence and then argue to the jury that the defendant should be convicted because he failed to adduce that evidence.
Prosecutors, like all lawyers, are not allowed to lie to the jury. Mississippi Rule of Professional Conduct 3.3, entitled “Candor Toward The Tribunal,” states as follows in pertinent part:
(a) A lawyer shall not knowingly:
a.
b. (1) make a false statement of material fact or law to a tribunal;
M.R.P.C. 3.3.[20]
A prosecutor cannot argue facts or inferences that the prosecutor knows are false or has very strong reason to doubt. United States v. Udechukwu, 11 F.3d 1101, 1106 (1st Cir. 1993). In Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785 (1967), the United States Supreme Court reversed the conviction of a defendant of rape of an eight-year-old where the prosecution repeatedly referred to a pair of man's under shorts as the “bloody shorts” where the prosecutor knew that the stain on the shorts was paint.
In United States v. Blueford, 312 F.3d 962, 968 (9th Cir.2002), the defendant was charged with being a felon in possession of a firearm. Blueford’s defense was that he was not near the place where and when the gun had been found and he had several alibi witnesses testify to this at trial. Believing that Blueford was colluding with his friends to create an alibi, the prosecution had the jail where Blueford was incarcerated to record his phone calls and these phone calls included calls between Blueford and his alibi witnesses in the months prior to trial. Blueford, 312 F.3d at 964. When Blueford and the alibi witnesses testified, they were asked whether they had spoken via telephone to each other on the dates and times indicated by the phone records. Blueford, 312 F.3d at 966. The prosecution, however, did not introduce the tapes or transcripts of what was on the tapes even though it had them. Id. During closing argument, the prosecution argued that the multiple phone calls made between Blueford and his alibi witnesses just prior to trial indicated that Blueford was concocting an alibi with these witnesses. Blueford, 312 F.3d at 967. As it turns out, though, the tape recordings did not contain any conversations about concocting an alibi and, indeed, Blueford could be heard on the tapes telling one of his witnesses to just tell the truth and questioning why another witness would lie. Id. On appeal, Blueford argued that it was prosecutorial misconduct for the state to ask the jury to infer that he fabricated an alibi when the prosecution knew that this was not the truth.
On appeal, the court reversed Blueford’s conviction.
“It's the easiest thing in the world for people trained in the adversarial ethic to think a prosecutor's job is simply to win.” United States v. Kojayan, 8 F.3d 1315, 1324 (9th Cir.1993). It is not. An attorney for the government is a “representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), overruled on other grounds, Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Put differently: “The prosecutor's job isn't just to win, but to win fairly, staying well within the rules.” Kojayan, 8 F.3d at 1323.
It is certainly within the bounds of fair advocacy for a prosecutor, like any lawyer, to ask the jury to draw inferences from the evidence that the prosecutor believes in good faith might be true. But it is decidedly improper for the government to propound inferences that it knows to be false, or has very strong reason to doubt, particularly when it refuses to acknowledge the error afterwards to either the trial court or this court and instead offers far-fetched explanations of its actions. Id. at 1318-19; see also id. at 1321 (the difference between a lawyer “ask[ing] the jury to infer only things that he believed in good faith might be true” and making “factual assertions he well knew were untrue” is “the difference between fair advocacy and misconduct”); United States v. Udechukwu, 11 F.3d 1101, 1106 (1st Cir.1993) (“[i]t is improper to imply reliance on a fact that the prosecutor knows to be untrue”); United States v. Valentine, 820 F.2d 565, 566 (2nd Cir.1987) (finding prejudicial misconduct where “the prosecutor misrepresented, at least implicitly, the substance of the testimony of several grand jury witnesses”).
Blueford 312 F.3d 962, 968 -969 (9th Cir. 2002).
The Mississippi Supreme Court has recognized that while counsel is entitled to broad latitude in making their closing arguments, he may not become abusive and go outside the confines of the record. Brown v. State, 690 So.2d 276, 296 (Miss.1996). Moreover, where the misconduct is flagrant it may require reversal of a defendant's conviction and sentence. Chase v. State, 645 So.2d 829, 853 (Miss.1994). Where a prosecutor has made an improper argument, the question on appeal is “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.” Wells v. State, 698 So.2d 497, 507 (Miss.1997).
In this case, the prosecution knew that there was a witness besides Harvey who saw Calvin with a gun just prior to the shooting. However, the prosecution argued that the jury should not believe Harvey’s self-defense theory because the only person who saw Calvin with a gun was Harvey. The same is true with respect to Calvin Younger’s prior convictions. The prosecution’s lying to the jury requires that Harvey’s conviction be reversed and remanded.
3. The prosecution committed other misconduct the effect of which was to deny Harvey Williams his right to due process and a fair trial.
A. Asking improper questions:
The prosecution’s telling the jury that Harvey Williams was the only person to see Calvin with a gun that night while knowing full well that this was not true was not the only episode of prosecutorial misconduct.
First of all, the prosecution insisted on calling the club where the shooting took place “Killer Jay’s”. T. 163, 222, 223, 729, 738. Mansell even asked Anthony Herrington whether he had ever heard the club called “Killer Jay’s” and whether anyone had ever been killed there. T. 500.
While cross-examining Harvey, the prosecution continuously asked him improper questions. ADA Mansell asked Harvey if he ever abused his girlfriend Cassandra. T. 581. She also asked Harvey how many kids he had by how many different women. T. 579. Later, Mansell asked Harvey whether he was flamboyant (T. 606), whether he liked money and whether he had attended the Pimp and Ho Ball. T. 606. She then asked Harvey “Who is Tasha Colbert?” to which Harvey responded that “It’s the girl San shot.” T. 606-07. San is Cassandra Younger, Harvey’s girlfriend who did not testify at trial. Younger had shot and killed a woman named Tasha Colbert. See Younger v. State, 931 So.2d 1289 (Miss. 2006). The so-called “Pimp and Ho Ball” was presumably a party attended by Harvey and Cassandra called “The Players Ball”.
On direct examination of Joe Pugh, ADA Mansell asked him to explain the relationship of Cassandra Younger to Calvin Younger. She then asked Pugh “Where is Cassandra right now?” T. 240. Defense counsel’s objection to this question was overruled. T. 241. Pugh answered that Cassandra was “incarcerated.” Mansell then asked him why Cassandra was incarcerated. He answered “Murder.” T. 241. She then asked Pugh to explain the relationship of Cassandra to Harvey.
A. Baby father. He’s the daddy of her kids.
Q. He’s the daddy of her children?
A. Yes, ma’am.
Q. How many children?
A. I’m not sure.
Q. Okay, more than one?
A. I believe like two or something.
T. 241.
Mansell also asked Pugh whether Calvin, when he was preparing to go out to the clubs that night, “was he getting prepared to have himself killed that night at Killer Jay’s?” Defense counsel’s objection to this question was overruled. T. 223.
In cross-examining Anthony Herrington, the security guard at Jay’s, Mansell asked him how many murders had occurred at the club between 1999 and June 2003. T. 506. An objection to that question was sustained. T. 506.
These inquiries was totally irrelevant to the issues in the case and were yet another attempt by the prosecution to have the jury convict Harvey based on irrelevant, inflammatory matters. Although objections to some of these questions were sustained, the questions themselves were highly improper and prejudicial. Moreover, since the questions had no relevance whatsoever to the issues at trial, the prosecution’s only motive in asking these questions was to inflame the jury and prejudice Harvey Williams.
“It is error in the course of a trial where one is charged with a criminal offense for the State to inject extraneous and prejudicial matters and lay them before the jury.” McDonald v. State, 285 So.2d 177, 180 (Miss. 1973). “A combination of such instances may become fatal error and ground for reversal even though the court sustains objections to such questions.... One of the ingredients of a fair and impartial trial is that an accused person should be tried upon the merits of the case.” Id.
In State v. Hall, 665 N.E.2d 728 (Ohio App. 1995), the defendant was being tried for felonious assault, robbery, and weapons possession. The prosecution questioned the defendant about his living arrangements, his illegitimate children and whether he received any welfare payments. The court held that the questions were irrelevant to the issue of whether the defendant had shot the victim and constituted an attempt to insinuate that the defendant’s release meant that he would produce more illegitimate children for the taxpayers to support. In so doing, the prosecution “ask[ed] the jurors to shed their objectivity and to assume the role of interested parties.” Hall, 665 N.E.2d at 732 quoting Cleveland v. Egeland, 497 N.E.2d 1383, 1389 (Ohio 1986). The remarks were “inflammatory and improper.” Id.
The Mississippi Supreme Court has condemned the practice of prosecutors’
asking of questions without a factual basis [that] leaves an impression in the mind of jurors that the prosecutor actually had such facts in hand and that the insinuations through questioning contained some truth. This leaves false and inadmissible ideas in the minds of jurors that cannot be adequately rebutted by the testimony of witnesses or instructions from the court.
Flowers v. State, 842 So.2d 531, 552 (Miss. 2003). In this case, the prosecution repeatedly tried to interject matters that the prosecution had to know were immaterial to the question of guilt or innocence but would cause the jury to look disfavorably on the defendant.[21] This pattern of misconduct denied Harvey Williams the right to due process and a fair trial.
B. Mischaracterizing Hayne’s testimony:
Prior to closing argument, the defense asked the trial court to rule that the prosecution could not argue that Hayne testified that Younger was shot four times in the back. T. 693. The trial court overruled the motion stating that it would not restrict either side from arguing “within the framework of the evidence that’s presented.” T. 693.
As described above, Hayne specifically testified that he did not do an analysis that would let him know the sequence of the five bullets that hit Calvin. In describing how the five bullets entered Calvin Younger, Dr. Hayne stated that one was from the front, two were from the back and two were from the side. In closing argument, however, just as the defense expected, the prosecution argued that “This man being shot four times in the back is not converted [sic].” T. 706.
The defense knew that Mansell was likely to mischaracterize Hayne’s testimony because she had done so repeatedly when she cross-examined Harvey Williams. On cross-examining the defendant, ADA Mansell asks how it could be that Younger was steadily approaching Williams if he was shot four times in the back. T. 573.
Q. So all the shots should be in the front?
A. No, ma’am.
Q. Well, they’re not, are they?
A. No ma’am.
Q. There are four from behind. Four times you shot him –
MS. ANDERSON: Objection, Your Honor. That’s not the evidence.
THE COURT: The objection is overruled.
T. 573.
This colloquy continued for another minute in the same vein. Then Mansell asked, “He was shot four times from back to the front. The bullets were going from the back of his body to the front of his body. Did you hear that?” T. 574. Mansell returned to the subject later asking Williams to admit that he shot Younger five times. Williams agreed. T. 597. “And somehow,” Mansell states, “four of those shoots [sic] ended up in his back. I’m just saying, that evidence is not controverted?” T. 597.
The prosecution’s insistence that Younger was shot four times in the back was not supported by Hayne’s testimony and the prosecution knew it. In asking Hayne to characterize the four shots that did not enter from the front, the prosecution asked Dr. Hayne whether it was safe to characterize the majority of the bullets as having been shot “from either the back or at an angle from the side.” T. 435 (emphasis added). Hayne agreed. T. 435. The prosecution did not ask Hayne whether Younger was shot four times from the back because they knew that that was not Hayne’s testimony. [22] But somehow, the four shots that entered from the back or side turned into four shots from the back. This mischaracterization of Hayne’s testimony was wrong. It was clearly done deliberately and in an attempt to mislead and inflame the jury. The prosecution’s questions and argument that Hayne testified that Calvin Younger was shot four times in was tantamount to false testimony; at the very least it was arguing facts not in evidence, one of the many cumulative prosecutorial errors requiring reversal, as in Flowers v. State (Flowers II), 842 So.2d 53 (Miss. 2003). See also Flowers v. State, (Flowers I) 773 So.2d 309 (Miss. 2000) and Randall v. State, 806 So.2d 185 (Miss. 2001). This additional prosecutorial misconduct is yet another reason why Harvey Williams’ conviction and sentence must be reversed.
4. The trial court erred in refusing to allow the defense to question witnesses about Calvin Younger’s history of violence.
The trial court’s rulings throughout the trial prevented Harvey Williams from telling the jury his theory of the case. Prior to trial, the prosecution filed motions in limine asking to prohibit Calvin’s sister Cassandra from testifying about “the prior history of the Victim in this matter.” CP. 43. The prosecution also asked the court to bar the defense from eliciting any testimony about threats Calvin Younger had made about killing Harvey Williams. T. 23. The trial court sustained these motions. T. 23, 26.
The court’s rulings meant that Williams was unable to cross examine the state’s witnesses about Calvin’s reputation for violence of any specific instances of conduct. For instance, the prosecution’s first witness was Fletcher Watts. When defense counsel asked Watts whether his cousin Calvin had a reputation for being a violent man, the prosecution objected and the trial court sustained the objection. T. 188. Notwithstanding the objection, Watts managed to tell the jury that Calvin was not violent. T. 188. Watts also insisted that Calvin never carried a gun. T. 188. Defense counsel then asked Watts whether Calvin had just gotten out of jail. Again, the trial court sustained the prosecution’s objection. T. 189.
Like Watts, Calvin’s cousin Joe Pugh also insisted that Calvin did not have a reputation for violence. T. 249. When defense counsel asked Pugh whether Calvin had shot at many people, Pugh admitted that he had shot at people but Pugh could not say how many. T. 249. Defense counsel then asked whether Calvin had been convicted of shooting Jacomine Hodge (as noted above, Calvin had been found guilty of aggravated assault in shooting Jacomine Hodge in Hinds County Case no. 95-1-361-00). T. 260. The prosecution objected and the trial court sustained the objection. T. 250. A few minutes later, defense counsel asked Pugh whether Calvin had had an argument with Harvey. T. 251. The prosecution’s objection was sustained. T. 251.
When Harvey was asked whether he was afraid of Calvin because Calvin had shot lots of had shot lots of people, the prosecution’s objection was again sustained. T. 554.
The trial court’s rulings meant that Harvey Williams was unable to present his theory of the case. A criminal defendant has the constitutional right to present a defense. U.S. Const. Amend. 6; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Due process affords the defendant the right of full confrontation and cross examination of the State's witnesses. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).
In a self-defense case, evidence of a relevant trait of the victim's character may be introduced to show that the victim was the first aggressor. M.R.E. 404(a)(2). “[P]roof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into specific instances of conduct.” M.R.E. 405(a). Under these rules, a witness could be asked whether the victim had a reputation for violence. Hester v. State, 841 So.2d 158, 162 (Miss.App. 2002). But this is not all. “Under [M.R.E. 405(b)] it has been held that specific incidents demonstrating a victim's propensity for violence are admissible when there is a claim of self-defense.” Id.
The trial court’s refusal to allow the defense to adduce evidence of Calvin’s prior violent history was error under Mississippi law and violated Harvey William’s right to present his theory of the case.
5. The trial court erred in disallowing the testimony of Freda Luckett.
Freda Luckett was a friend of Harvey Williams. The night that Calvin was shot, Freda was exiting Jay’s Lounge when she bumped into Calvin and he grabbed her backside and Freda said something to Calvin about her being involved with Harvey. T. 22-23. Calvin replied that she could forget it, he was going to kill Harvey Williams. T. 23. The prosecution argued that this testimony should be excluded because the threat was hearsay and because Freda Luckett had not told Harvey Williams about Calvin’s threat and, thus, the threat could not have been relevant to Williams’ state of mind when he shot Calvin. T. 23. The prosecution also objected to Luckett’s testimony because Freda had given a tape-recorded statement to attorney Cynthia Stewart and defense had failed to turn over a copy of the tape. T. 24. Even though the defense had tendered a transcript of the tape recording prior to trial (and supplied the prosecution with a summary of Luckett’s testimony[23]), the prosecution argued that transcript was insufficient as it was not authenticated by a court reporter. CP. 39. The prosecution, though, had itself interviewed Freda and did not turn over a copy of her statement and a copy of the tape recording until the Friday before trial.[24] Despite the fact that the prosecution had ample discovery regarding Freda’s testimony, the trial court nonetheless ruled that Freda’s testimony was inadmissible. T. 23.
This ruling was erroneous. The case law in Mississippi has always been that “uncommunicated threats made by the victim may be admissible in murder cases where the defense is self-defense and there is an issue as to who was the aggressor, since the threats are relevant to the victim’s state of mind.” Gates v. State, 484 So.2d 1002, 1008 (Miss. 1986) (emphasis added) citing Washington v. State, 307 So.2d 430 (Miss.1975); Muse v. State, 158 Miss. 449, 130 So. 693 (1930); Beauchamp v. State, 128 Miss. 523, 91 So. 202, 203, 204 (1922); Mott v. State, 123 Miss. 729, 86 So. 514 (1920); Clark v. State, 123 Miss. 147, 85 So. 188 (1920); Leverett v. State, 112 Miss. 394, 73 So. 273 (1916); Echols v. State, 99 Miss. 683, 55 So. 485 (1911).
This is a case where there was a real question as to who was the aggressor. Calvin had spotted Harvey and was headed towards him yelling. T. 495. There was evidence the jury didn’t hear that Calvin had a gun on him at the time this happened and that he had, moments earlier, stated he was going to kill Harvey. But the jury heard none of this.
The fact that Freda’s testimony concerned an out-of-court statement made by Younger is not sufficient to disallow the evidence. Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727 (2006). In Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), state evidentiary rules-specifically, a “voucher” rule preventing a defendant from cross-examining his own witness and general rules against hearsay-prevented a defendant from presenting one witness who had repudiated a prior confession to the same crime and other witnesses who would have discredited that repudiation. Chambers, 410 U.S. at 294, 93 S.Ct. 1038. The United States Supreme Court held that exclusion of this critical evidence that directly affected the ascertainment of guilt denied the defendant a fair trial. Chambers, 410 U.S. at 302-03, 93 S.Ct. 1038.
In this case, the exclusion of Freda Luckett’s testimony that Calvin Younger had threatened to kill Harvey Williams moments before Younger was shot was evidence vital to Harvey Williams’ defense and evidence that the jury should have heard in deciding between murder and self-defense. Its exclusion was reversible error.
6. The trial court erred in failing to grant a continuance where a) the defense needed more time to locate crucial witnesses and b) the prosecution was providing discovery not only right before trial but during trial.
Although this case was not tried until some three years after Calvin Younger’s death, Lula Anderson was appointed to represent Williams less than a year prior to trial. She immediately filed a motion for discovery. CP. 16. About a month prior to trial, Anderson filed a motion for supplemental discovery. CP. 30. In that motion, she specifically asked for a transcript of the tape recorded statement taken from Donte Hill. Furthermore, she noted that the witness list provided by the prosecution on March 15, 2007, failed to detail the substance of any oral statement given by the witnesses. CP. 31, ¶ 3.
On the first day of trial, Anderson asked the court for a continuance of three weeks so that she could locate two important witnesses who could testify regarding Calvin’s propensity for violence. T. 7. The two witnesses were Jacomine Hodge and Anthony Ray Dixon. T. 8. Dixon had been kidnapped by Calvin Younger from a crowded shopping mall, shot and left for dead. CP. 93. Hodge had also been shot by Younger after they had a minor disagreement over Hodge’s cousin who happened to be Calvin’s girlfriend. CP. 94.[25] What these two witnesses would have made clear is that Calvin would resort to gun violence over the most minor of disagreements and that he also had a history of violence against victims and/or witnesses who planned to testify against him. CP. 94. Harvey was aware of these shootings and, thus, when Calvin made numerous threats to kill Harvey after Harvey had him arrested for armed robbery, Harvey had every reason to think that Calvin would seek retaliation with a gun.
An additional reason for the continuance was the fact that prosecution was providing discovery to the defense not only just prior to trial but during the trial as well. The defense was offered the negatives of photos of the crime scene the Friday before trial. They saw the photos themselves only after the trial started. T. 416. An audiotape and a transcript of the audiotape of an interview with Freda Luckett was not provided until the first day of trial. Supp. T. 4. The ballistics report, too, was only tendered to the defense the Friday before trial. T. 9. The prosecution tendered the results of the gunshot residue (GSR) test only once the trial had started. T. 9, 277. And the prosecution did not provide any notice that it would use a misdemeanor conviction to impeach Harvey Williams if he testified. Supp. T. 4.
The timing of the ballistics report was troubling because Haynes’ autopsy report referenced his being provided with three .357 projectiles. Ex. 24 for Identification.[26] It was not until the ballistics report was tendered just prior to trial that the prosecution identified the bullets in Younger’s body as coming from a .9 millimeter. Because the autopsy report indicated the bullets that shot Younger were from a .357, the defense spent time prior to trial preparing to prove that the autopsy report was incorrect in at least this one respect. Had the ballistics report been timely provided, the defense would not have wasted this crucial time. See, e.g., Shaffer v. State, 740 So.2d 273, 280 (Miss. 1998) (holding that it was error for the state to affirmatively mislead the defense about the results of blood taken from the decedent's body when in fact no testing had been done at all).
As defense counsel Lula Anderson informed the trial court, her schedule just prior to Williams’ trial was unusually crowded. T. 9. She had spent most of February seeking a new trial in the case of Elicia Hughes. CP. 95; Supp. T. 16. She had trials scheduled for March 5, March 19 and March 20. T. 9.[27]
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).
[i]t is vain to give the accused a day in court with no opportunity to prepare for it, or to guarantee him counsel without giving the latter any opportunity to acquaint himself with the facts or law of the case [citation omitted].
Powell v. Alabama, 287 U.S. 45, 59, 53 S.Ct. 55 (1932). To be effective, an attorney must be provided with an “opportunity to make legal preparation in the light of such circumstances as may have been disclosed . . . .” United States v. Ploeger, 428 F.2d 1204, 1206 (6th Cir. 1970).
This Court has repeatedly recognized the prejudice which results from surprise evidence which a defendant has no time to prepare to meet. For example, in Galloway v. State, 604 So.2d 735 (Miss. 1992), this Court reversed a murder conviction because the trial court did not grant the defendant a continuance to investigate after the state called a surprise witness to the stand. There, as here, the witness, as the court put it, “dynamited the defense’s accident theory.” This Court recognized that
[s]ome surprise evidence by its very nature may not be cured summarily. In the case of surprise testimony such as confronted Galloway, counsel need a reasonable opportunity to explore the witness’s background and character. [Id., 604 So.2d at 739.
Harvey similarly required a continuance to make an adequate factual investigation and preparation in light of the prosecution’s last-minute tendering of discovery.
The Mississippi Supreme Court has not been reluctant to reverse cases where courts have denied continuances necessary to reasonably investigate surprise evidence. For example, in Traylor v. State, 582 So.2d 1003 (Miss. 1991), this Court reversed where counsel learned only two days before trial that the state intended to call a co-indictee as a witness.
In West v. State, 553 So.2d 8, 18-19 (Miss. 1989), the Court ruled that a one day mid-trial delay to allow the defendant to cross-examine an expert witness, who had surprised the defense with testimony on the question of the defendant’s motive for sexually assaulting the victim, was insufficient to allow the defense to prepare. Similarly in Harrison v. State, 635 So.2d 894 (Miss. 1994), the court held that the failure to grant a defendant a continuance to prepare after the prosecution’s expert witness proffered an unexpected opinion was reversible error.
The case at bar is similar to Tanner v. State, 556 So.2d 681 (Miss. 1989). There, too, the prosecutor failed to disclose the statement of a witness. During a police officer’s testimony, it appeared that there was a police report which directly impeached other witness statements and which had not been provided. This Court held that Tanner had suffered irreparable injury because of the late disclosure of the offense report. See also, Fuselier v. State, 468 So.2d 45, 56 (Miss. 1985).
In this case, the trial court allowed the prosecution to use evidence that it provided mid-trial. On the other hand, when it turned out that both sides learned for the first time that Herrington (a witness the defense had listed in its disclosures provided the prosecution prior to trial) could testify that Calvin was in possession of a gun just prior to the shooting, the trial court excluded it. This failure to apply the rules evenhandedly to the prosecution and the state is itself a violation of due process and the right to a fair trial. See, e.g., People v. Sturm, 129 P.3d 10, 26 (Cal. 2006) (reversing penalty phase where trial court’s treatment of the prosecution and the defense was not evenhanded).
Given the prosecution’s failure to timely tender important discovery to the defense and the defendant’s inability to locate two witnesses necessary to his defense, the trial court should have given the defense a three week continuance. Instead, the trial court allowed the prosecution to introduce any and all of its evidence, no matter whether it was timely disclosed, but excluded important evidence for the defense. In the end, the denial of the continuance coupled with the court’s ruling prevented Harvey Williams from presenting his theory of the case denying him due process and the right to a fair trial.
7. The trial court erred in refusing to allow the defense to cross-examine Donte Hill about a statement he gave to Cynthia Stewart and in allowing the prosecution to admit a prior inconsistent statement.. The prosecution later committed further misconduct by arguing that Hill’s prior inconsistent statement was substantive evidence of guilt.
Prior to trial, the prosecution obtained a ruling disallowing the defense to cross-examine Donte Hill about a tape-recorded statement he gave to attorney Cynthia Stewart. T. 24. The prosecution objected to the use of the statement because the defense had not provided a copy of the tape recording to the prosecution prior to trial. T. 24.
Donte Hill was picked up by police right after the shooting. Right after he gave law enforcement a statement, Donte Hill gave a statement to Cynthia Stewart. This statement was made on June 23, 2003 – the day after the shooting. Hill told Cynthia Stewart that as a result of coercion or just his own fear, Hill embellished what had happened just before the shooting so that the police would let him go. CP. 97. On March 23, 2007, the defense provided the prosecution a summary of Hill’s expected testimony. CP. 34. That notice stated that “Mr. Hill will testify that certain of the statement as authored by the police is totally mischaracterized.” CP. 34.
Donte Hill’s testimony was important because it was the prosecution’s theory that as Harvey Williams left the car, he told Donte Hill to “hold his head down”. The prosecution argued during closing statements that this meant that Harvey Williams intended to kill Calvin Younger. ADA Sanders told the jury “Donte Hill: Put your head down. That’s malice aforethought. That’s knowledge before you get out of the car that you’re going to commit a crime.” T. 740.
When Donte Hill testified for the prosecution, he stated that when Harvey Williams exited the car, he told Hill to “hold it down.” T. 295. In his statement to the police, however, Hill said that Williams told him to hold his head down. T. 295. Hill explained that when he made that statement to the police he was scared. T. 300. And while he did end up putting his head down, he could not recall whether that was before or after he heard shots fired. T. 301, 332-33. At any rate, Hill admitted that in his statement to the police, he said that Harvey told him to “hold his head down.” T. 304. However, Hill insisted that as he remembered it, Harvey told him to “hold it down” and not to “hold his head down.” T. 323. And Hill took that to mean that Harvey was telling him to “hold it down, watch the car or whatever. I’m fixing to get out.” T. 323. To the extent that the statement he gave to the police reflects otherwise, that part was not true although everything else in the statement was. T. 325.
When the prosecution finished its direct examination of Donte Hill, it asked for and received permission to play Donte Hill’s taped statement to the jury over the defendant’s objection. T. 334. The jury, however, was never instructed that this prior statement of Hill’s could not be considered as substantive evidence. Admission of the prior taped statement was error inasmuch as Hill admitted and explained having made the prior statement. Since he admitted making the statement, it was error to introduce the prior statement. Jones v. State, 956 So.2d 389, 393 (Miss. App. 2003) cert. denied 860 So.2d 1223 (Miss. 2004).[28] The prosecution later argued that Donte Hill’s prior inconsistent statement was substantive evidence of Harvey Williams’ guilt in violation of Mississippi law. See King v. State, 994 So.2d 890, 899-90 (Miss.App. 2008).
Again, the trial court’s ruling were such that anything provided by the prosecution at the last minute or even during trial was admissible but anything not provided by the defense would be excluded. Indeed, when the prosecution was dissatisfied with Donte’s testimony regarding “hold it down” vs “hold your head down”, it played the entire tape-recorded statement for the jury to hear.
Given the importance of what Williams said to Donte Hill as he exited his car, the defense should have been allowed to use Donte’s statement to Cynthia Stewart as further evidence that law enforcement got it wrong when it wrote that Donte Hill said “hold your head down” instead of “hold it down.”
8. Defense counsel provided ineffective assistance in failing to give the prosecution more complete discovery with regard to defense witnesses.
To the extent that this Court rules that the trial court correctly refused to admit certain defense evidence because defense counsel failed to provide sufficient discovery thereof, trial counsel provided ineffective assistance of counsel. The trial court’s rulings so decimated Harvey Williams’ defense that Williams himself objected stating that, as he understood it, his counsel had provided only summaries and not complete statements in discovery “[s]o all of my witnesses are only able to say excerpts – excerpts of what their complete testimony is, and in light of that I don’t feel like I’m getting proper representation or the full scope of representation because we have witnesses that wants to help tell the story so that the jury that is judging my whole life will be able to see not just my point of view but the entire point of view. “ T. 635.
In failing to comply with the discovery rules, trial counsel was ineffective and her ineffectiveness clearly prejudiced the defendant’s case when it resulted in the exclusion of evidence which would have supported his self-defense theory. That defense counsel’s performance amounted to ineffective assistance of counsel should be obvious. As the Sixth Circuit has stated, “We note at the outset that a number of courts have found ineffective assistance of counsel in violation of the Sixth Amendment where, as in this case, a defendant's trial counsel fails to file a timely alibi notice and/or fails adequately to investigate potential alibi witnesses.” Clinkscale v. Carter, 375 F.3d 430, 443 (6th Cir.2004). In another case, the same court found that “[a]n objectively reasonable attorney would have complied with Michigan law in providing the correct alibi notice. This is especially true because Petitioner's entire defense rested upon alibi.” Stewart v. Wolfenbarger, 468 F.3d 338, 355 (6th Cir. 2006).
Because trial counsel’s failure to follow the discovery resulted in the defendant’s inability to put on important evidence substantiating his defense that the killing was done in self defense, trial counsel’s performance was ineffective and defendant’s resulting convictions and sentences should be reversed.
The test for whether such amounts to ineffective assistance of counsel is not whether the court believes the outcome would have been different had counsel done the right thing but whether there was a reasonable probability the outcome would have been different had the correct procedure taken place. See, e.g., Raygoza v. Hulick, 474 F.3d 958, 965 (7th 2007) (test for determining ineffective assistance is not whether trial judge subjectively believed that additional alibi witnesses would have affected verdict but whether objectively there was a reasonable probability the outcome would have been different had the witnesses been presented).
In order to meet the second prong of the Strickland test, Williams must show that his counsel's unreasonable conduct prejudiced the outcome of his trial, such that our confidence in the outcome is undermined. See Strickland v. Washington, 466 U.S. 668, 694, 466 U.S. at 694, 104 S.Ct. 2052 (1984). “The level of prejudice [Williams] need demonstrate lies between prejudice that had ‘some conceivable effect’ and prejudice ‘that more likely than not altered the outcome in the case.’ ” Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052); Cox v. Donnelly, 387 F.3d 193, 199 (2d Cir. 2004). To the extent that this court attributes Williams inability to present his theory of the case to defense counsel’s failure to provide timely discovery, defense counsel’s failure denied Harvey Williams his right to due
process and a fair trial and is cause for reversal of Harvey Williams’ conviction and sentence.
9. The trial court erred in holding that if Cassandra Younger testified she could be impeached with a video in which both she and Harvey were playing roles. The video was more prejudicial than probative inasmuch as it portrayed Harvey and Cassandra playing characters at a costume party. Furthermore, the prosecution tendered it to the defense for the first time just prior to Cassandra’s taking the stand.
Harvey planned to call his girlfriend Cassandra Younger to testify on his behalf. Cassandra was the older sister of Calvin and she could have testified as to the armed robbery as well as to the fact that Calvin had a reputation for violence, that, he had made threats to kill Harvey and had done so in front of the children and that he had shot at least four or five people in the past. T. 683. The prosecution planned to impeach Cassandra with a video of Harvey and Cassandra dressed up to promote a costume party called “The Players Ball”. The Players Ball is a party where those in attendance are expected to dress as pimps and prostitutes.[29] T. 635. In the tape, Harvey, dressed as a pimp, states that the three women accompanying him (who are all dressed as prostitutes), including Cassandra (and Harvey’s sister Camillia), allow him to speak for them. The prosecution argued that if Cassandra testified, the prosecution should be allowed to cross-examine her using the tape to show that Harvey controlled everything Cassandra said. The trial court ruled that if Cassandra testified the prosecution would be allowed to impeach her with the video. T. 630-31.
The problem with the trial court’s ruling is that the tape, given the circumstances of its making, was clearly more prejudicial than probative. Pursuant to M.R.E. 403, evidence, even if relevant, “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, . . . .” See, e,g., Palmer v. State, 939 So.2d 792, 795 (Miss.2006). The tape the prosecution planned to introduce depicted Harvey and Cassandra playing a prostitute and a pimp. This was no more relevant than if Julie Roberts were to be impeached by playing a portion of the movie Pretty Woman in which Ms. Roberts portrayed a prostitute. See, e.g., State v. Ingram, 2005 WL 2128959 (N.C.App.) (trial court correctly ruled that defense could not question witness about her appearance on the Jerry Springer show; the evidence was more prejudicial than probative given that the witness was playing a role on the show).
Once again, the trial court’s erroneous ruling prevented the defense from putting on its theory of the case in violation of Harvey Williams’ right to due process and a fair trial.
10. The trial court’s failure to apply the rules evenhandledly to the prosecution and defense denied Harvey Williams the right to due process and a fair trial.
The prosecution did not provide the video with which it intended to impeach Cassandra Williams until just before Cassandra was to testify. The prosecution claimed that they had just gotten the video so this was the earliest it could be produced. The trial court nevertheless ruled that the video could be used to impeach Cassandra. And even though the GSR report was not tendered until mid-trial, the trial court nonetheless allowed the prosecution to introduce it to show that Younger had not fired a weapon.
On the other hand, the trial court had ruled that even though Herrington’s testimony that Calvin had a gun had just been discovered by both sides, it could not be used by the defense even though this testimony was essential to Harvey’s defense. The trial court also excluded the testimony of Freda Luckett because the defense failed to give the prosecution a copy of an audiotape of her statement even though the prosecution had interviewed Luckett and had ample notice of the substance of her testimony. And again, the trial court refused to let the defense cross-examine Donte Hill with a statement he gave to Cynthia Stewart because it was not timely provided. The trial court consistently applied the discovery rules in an uneven manner throughout the trial. In so doing, the trial court denied Harvey Williams his right to due process and a fair trial. See, e.g., People v. Sturm, 129 P.3d 10, 26 (Cal. 2006) (reversing penalty phase where trial court’s treatment of the prosecution and the defense was not evenhanded).
11. The trial court erred in giving a flight instruction
After the shooting Harvey drove to his grandmother’s house about a mile away. He testified that he “started to stay {at Jay’s Lounge], but like I said, I didn’t know who all was with Calvin and I still didn’t feel like I was safe.” T. 566. When Harvey found out that the police were looking for him (he did not remember whether he knew there was a warrant out for his arrest), he had his then-attorney Cynthia Stewart contact the police department and, on June 25, 2003, he turned himself in. T. 567.
Notwithstanding this testimony, the trial court gave the jury a flight instruction. CP. 60; S-2.[30] Harvey’s counsel objected to the giving of this instruction. T. 671, 690. She specifically objected on the basis that a flight instruction is not warranted in a self-defense case. T. 690.
“Flight evidence is controversial and must be handled with care.” United States v. Benedetti, 433 F.3d 111, 116 (1st Cir.2005). “[A]t least in many cases, [flight] evidence is only marginally probative as to the ultimate issue of guilt or innocence.” United States v. Hernandez-Bermudez, 857 F.2d 50, 54 (1st Cir.1988). Thus, “an instruction that flight may be considered as a circumstance of guilt or guilty knowledge is appropriate only where that flight is unexplained and somehow probative of guilt or guilty knowledge.” Holly v. State, 671 So.2d 32, 38 (Miss.1996) (emphasis added). Here, Harvey Williams explained that he left the scene and drove to his grandmother’s house because he did not think it safe to remain on the scene. After all, he had encountered Calvin at a time when he thought Calvin was still in jail. There was no way to know whether Calvin had any friends with him when he was shot. As it turned out, Calvin was with two relatives and at least one of these relatives was a drug dealer. Harvey later turned himself in to police.
Where, as here, the defendant is claiming self-defense, the Mississippi Supreme Court has made it plain that the giving of a flight instruction is reversible error. Tran v. State, 681 So.2d 514, 519 (Miss.1996).
Where the defendant is arguing self-defense, a flight instruction should be automatically ruled out and found to be of no probative value.... To suggest and highlight, through the sanction of a court granted instruction, that the defendant's flight was possibly an indication of guilt suggests that the court does not accept the self-defense argument.
Banks v. State, 631 So.2d 748, 751 (Miss.1994).
The facts in Tran are similar to those here. Tran and Chi Phuong Ho got into an argument in the restroom of a restaurant. Tran, 681 So.2d at 515. Ho exited the restroom first. When Tran exited, he was jumped by Ho and Ho’s friends. Id. Tran claimed that Ho had a gun on him. The police had to be called to break up the fight. Id.
Tran left the restaurant to clean himself up. Id. He and a friend returned to the restaurant later to retrieve a car they had left in the lot. When they got to the parking lot of the restaurant, Ho was still there. Tran testified Ho stated that one of them would die. Id. Tran saw Ho go for his gun, which was in his pants. Tran jumped back into his car, grabbed a shotgun, and fired it in the general vicinity of Ho. According to Tran, after he shot Ho, he and his friend left the premises as soon as they could so as to avoid revenge from the friends of Ho. Id. Tran was not arrested until a year later. Tran, 681 So.2d at 517. The trial court gave a flight instruction and, for this reason, the Mississippi Supreme Court reversed. Tran, 681 So.2d at 519.
In Pannell v. State, 455 So.2d 785 (Miss.1984), the defendant, who, as here, was claiming self defense, testified that he left the scene after the shooting and went to his sister’s house, then phoned the sheriff's office to report the incident, tried unsuccessfully to contact his attorney, and turned himself in the next day. Pannell, 455 So.2d at 788-89. The Mississippi Supreme Court reversed because the trial court had given the jury a flight instruction. Id.
This was a self-defense case wherein Harvey Williams gave a reasonable explanation for leaving the scene of the shooting. He later turned himself in. Under these facts, the giving of a flight instruction was reversible error.
12. Harvey Williams’ conviction and sentence must be reversed because of cumulative error.
Many of the issues raised above require reversal regardless of whether they were compounded by additional errors. However, assuming this Court does not find any individual error sufficiently egregious so as to require reversal, the cumulation of error in this case is cause for reversal. As stated previously, the trial court’s rulings were anything but fair in that the trial court allowed the prosecution to introduce evidence notwithstanding that it was not timely tendered in discovery. On the other hand, the trial court refused to allow this same relaxation-of-the rules attitude toward defense evidence no matter how important that evidence was to Harvey Williams’ defense. These rulings combined with the egregious examples of prosecutorial misconduct deprived Harvey Williams of his right to due process and a fair trial.
The Mississippi Supreme Court has recognized that several errors not individually sufficient to warrant a new trial may, when taken together, require reversal. Stringer v. State, 500 So.2d 928, 946 (Miss. 1986); Hickson v. State, 472 So.2d 379, 385-86 (Miss. 1985). In this case, the court made several errors in its rulings that, cumulatively, had the effect of denying Harvey Williams a fair trial. Chambers v. Mississippi, 410 U.S. 284, 298, 93 S.Ct. 1038, 1047 (1973) (reversing based on various evidentiary errors resulting in a denial of due process). Combined with the egregious prosecutorial misconduct, these errors together denied Harvey Williams his right to due process and a fair trial.
If this Court finds that no single error in this case calls out for reversal of the convictions and /or sentences, it should nonetheless consider a new trial based on the plethora of errors that prevented Harvey Williams from obtaining due process.
Conclusion
Harvey Williams’ had a right to have the jury decide whether his shooting of Calvin Younger was done in self-defense or not. Between the trial court’s erroneous rulings and the prosecutorial misconduct, the jury never got to hear Harvey Williams’ case. For these reasons, Harvey Williams, Jr.’s conviction and sentence must be vacated or reversed and remanded for a new trial.
Respectfully submitted,
HARVEY WILLIAMS, JR.
By: ______________________
Jane E. Tucker (MS Bar No. 1786)
235 Melbourne Rd.
Jackson, MS 39206
(601) 291-2047
janetucker39@
CERTIFICATE OF SERVICE
I, Jane E. Tucker, hereby certify that I have this day mailed by first-class mail, postage prepaid, a true and correct copy of the foregoing Brief of Appellant to the following:
Hon. Jim Hood
Mississippi Attorney General
P.O. Box 220
Jackson, MS 39205
District Attorney Robert Smith
P.O. Box 22747
Jackson, MS 39225-2747
Hon. L. Breland Hilburn
Senior Status Judge
John Arthur Eaves Law Offices
101 N State St
Jackson, MS 39201-2811
This, the 17th day of February, 2009.
_____________________________
Jane E. Tucker
-----------------------
[1] See case no. 95-1-361-00 in the Circuit Court of Hinds County. He was also sentenced to three years for receiving stolen goods in Indictment no. V-4473 in the same court.
[2] The testimony recounted below is set forth so that the Court has a chronology of the events. It is not in the order that the witnesses testified.
[3] The armed robbery occurred on May 3, 2003. T. 640. Younger was arrested on May 27, 2003. T. 641.
[4] See the testimony of Trinell Van Horn. T. 649-652.
[5] It is this writer’s understanding from having represented defendants for twenty years, that inmates, instead of saying, e.g., “I committed a crime” or “I was charged with a crime” will say they “caught a case.” Calvin’s stating he was “going to catch a case” would appear to mean that he was going to be charged with another crime in the future. I.e., that he would be committing another crime. See also State v. McCoy, 1997 WL 298258 *4 (Ohio App. 8 Dist. 1997) (defendant testified he did not graduate from high school because he had “caught” an aggravated robbery case).
[6] VIPs get in free and get to sit with Jay. T. 503.
[7] Harvey went to Jay’s some three or four nights a week and never saw Calvin there. T. 567.
[8] Pugh pleaded guilty to two counts of sale of cocaine in August 2004 – after the shooting but before Harvey’s trial. T. 216.
[9] As the photos (Exs. 1, 8 and 9) and testimony (T. 229), indicate, Harvey’s bright blue Lincoln was rather distinctive.
[10] Harvey was carrying a .9 millimeter gun. Jay’s, however, does not allow people to carry weapons into the club. Harvey planned to put it in his trunk once he was able to park the car. T. 578.
[11] Pugh testified that the parking lot was crowded that night but people “dipped off” after the shooting. T. 242. People weren’t lining up to give statements but Pugh stayed and gave a statement to police at 5:15 a.m. T. 242.
[12] According to another officer, Keith Denson, “No pertinent evidence was recovered the night of the event.” T. 393.
[13] Denson concurred. There should have been five shell casings at the scene. T. 407.
[14] At the hearing on Williams’ Motion for New Trial, the prosecution argued that Herrington’s testimony was inadmissible because Herrington did not tell Williams that Calvin had a gun prior to Calvin getting shot. Supp. T. 11-12.
[15] Watts said that they just went to the door to “sight-see” and then turned around. T. 185.
[16] Pugh was asked by the prosecution whether he attempted to take anything off of Calvin’s body. Pugh said “no.” T. 235. On cross-examination, however, Pugh admitted that Calvin had Pugh’s phone on him at the time he was shot. When defense counsel asked Pugh whether Pugh took the phone with him, he stated, “I’m not even sure.” T. 249. Of course, the police testified that they did not recover a cell phone from Calvin’s body. T. 388, 408.
[17] The prosecution was referring to Harvey Williams as the convicted liar inasmuch as Williams previously was convicted of misdemeanor false pretense. Inasmuch as the prosecution knew that Harvey was not the only person who saw Calvin with a gun (even though the jury was not apprised of this fact), this argument was error and is raised as an issue below.
[18] Mansell apparently has a history of committing prosecutorial misconduct and/or violating the rights of defendants and prospective jurors. In Davis v. State, 970 So.2d 164, 171-72 (Miss.App. 2006), the defendant’s conviction was reversed after Ms. Mansell improperly commented on the defendant’s failure to testify. It appears that she was also responsible for erroneously implying that defense counsel acted improperly in Bailey v. State, 952 So.2d 225, 234-35 (Miss.App. 2006) (Ms. Mansell is not named in the opinion but it is undersigned counsel’s belief that she was the prosecutor responsible for the erroneous arguments in that case). Mansell, along with Stanley Alexander, was also responsible for convicting the defendant in King v. State, 994 So.2d 890 (Miss.App. 2008), by improperly using, as the only evidence of guilt, the witnesses’ prior inconsistent statements. Again, the defendant’s conviction was reversed. Finally, it was Mansell’s striking of a juror because of his sex that required reversal in McGee v. State, 953 So.2d 241 (Miss.App. 2005) aff’d 953 So.2d 211 (Miss. 2007) (in the Court of Appeals’ opinion, Ms. Mansell is referred to as Ms. Wooten).
[19] See also ABA Standards for Criminal Justice, The Prosecution Function (3d ed. 1993) § 3-5.8(a); Defense ABA Standard for Criminal Justice, The Defense Function (3d ed. 1993) § 4-4.7(a) provide, in regard to jury argument, that it is unprofessional conduct for prosecutors or defense counsel intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
[20] When defense counsel was cross-examining Fletcher Watts, she asked Watts where Calvin was working at the time of the shooting. As might be expected of someone who was in and out of jail all the time, Calvin was not working anywhere. T. 184. The prosecution objected to defense counsel’s question on the grounds that it was irrelevant. T. 184. Clearly, the prosecution’s definition of relevance depended on who was asking the question.
[21] At the hearing on Williams’ Motion for New Trial. ADA Sanders argued that he asked Hayne whether Younger was shot four times in the back and Hayne said “yes.” Supp. T. 14. The transcript, however, demonstrates that Sanders’ recollection is wrong.
[22] CP. 33.
[23] The transcript reveals that Freda Luckett gave this same statement to police shortly after the shooting. CP. 101.
[24] Hodge was the victim of the aggravated assault for which Calvin was sentenced to prison in 1996.
[25] See page One of the Autopsy Report under the heading “TRACE EVIDENCE TO JPD”. Ex. 24 for Identification.
[26] The trial of Kris Mastorakis was scheduled for March 5, 2007, before Hon. Tomie Green and the trials of Dewayne Henderson, Oscar Cavett and Russell Harper were scheduled for Judge Kidd’s court on March 19 and 20. CP. 95.
[27] It was also error for the prosecution to impeach its own witness without first showing surprise or unexpected hostility. Wilkins v. State, 603 So.2d 309, 322 (Miss. 1992).
[28] This type of costume party has a long history. Anyone who has seen Bridget Jones’ Diary (or read the book) may remember that the British throw similar costume extravaganzas called “Vickers and Tarts” parties.
[29] S-2 told the jury “The Court instructs the jury that flight may be considered as a circumstance of guilty knowledge. If you believe from the evidence in this case beyond a reasonable doubt that the Defendant, Harvey Williams, Jr., did flee or go into hiding, you may consider that flight as a circumstance of guilty knowledge. Such flight or hiding is to be considered in connection with all other evidence in this case.” CP. 60.
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