Luke Reed v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2014-KA-01203-COA

LUKE REED A/K/A LUKE REED, JR. A/K/A APPELLANT
LUKE HUGHES

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/19/2014
TRIAL JUDGE: HON. JEFF WEILL SR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: ERIN ELIZABETH PRIDGEN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY: ROBERT SHULER SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF AGGRAVATED ASSAULT
AND FELON IN POSSESSION OF A
FIREARM AND SENTENCED TO TWENTY
YEARS FOR AGGRAVATED ASSAULT
AND FIVE YEARS FOR FELON IN
POSSESSION OF A FIREARM, WITH THE
SENTENCES TO RUN CONCURRENTLY,
ALL IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS
DISPOSITION: REVERSED AND REMANDED - 05/10/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

WILSON, J., FOR THE COURT:

¶1. A Hinds County jury convicted Luke Reed of aggravated assault and being a felon in

possession of a firearm. On appeal, Reed argues (1) that he was entitled to have the charges
against him dismissed because his right to a speedy trial was violated and, (2) in his pro se

supplemental brief, that the trial court erred by barring from him impeaching prosecution

witness Jimmy Lewis with evidence of Lewis’s prior convictions. We agree with the trial

court that Reed’s right to a speedy trial was not violated; however, Reed was entitled to

cross-examine Lewis regarding his prior convictions, and it was reversible error to prohibit

him from doing so. Accordingly, we reverse Reed’s convictions and remand for a new trial.

FACTS

Luke Reed’s Version

¶2. Luke Reed lived in a tent in a wooded area in Jackson near his friend Jimmy Lewis’s

house. At trial, Reed testified that on November 3, 2012, he walked to Lewis’s house, and

the two men sat on the porch and drank liquor together. After a while, Reed left to buy a pint

of whiskey. Lewis’s girlfriend, Cassandra James, was at Lewis’s house when Reed returned

with the whiskey. Lewis and James went inside, while Reed remained on the porch.

¶3. Sometime later, two men drove up in a truck and wanted to trade Lewis tools for crack

cocaine. Lewis went out to talk to the men, and it “[s]eemed like . . . they got kind of

arguing.” Lewis then walked back to the porch and asked Reed if he could borrow Reed’s

pistol,1 and Reed gave Lewis his pistol. Lewis returned to the car and talked to the men, and

the men eventually drove off.

¶4. Lewis then went back inside the house—with Reed’s pistol—while Reed remained

on the porch and continued drinking. When Reed later got ready to leave, he went inside and

1
Reed admitted that although he is a convicted felon, he carries a pistol because he
is homeless and needs it for protection.

2
asked Lewis to return his gun. Lewis had “been drinking or something was wrong with him,

he was high or something.” Lewis told Reed to get out of his house, so Reed walked back

out to the porch. Lewis then told Reed to get off of his porch. Reed responded, “[N]ah, man

you got my pistol.” Lewis then walked toward Reed with the pistol out and “was fixing to

pull [the pistol] up,” and Reed “thought [Lewis] was fixing to shoot [him].” Reed testified,

“That’s when I grabbed him and me and him got to tussling over the pistol. And the shot

came out. When [Lewis] fell down, I reached down and got my pistol.” Lewis called out for

James and yelled that Reed had shot him. But Reed maintains that he did not shoot Lewis;

rather, Lewis “shot [him]self.” Reed left the house after Lewis was shot.

Jimmy Lewis’s Version

¶5. Lewis denied that he ever asked for or took possession of Reed’s gun. Lewis and

Reed both went to the liquor store, and sometime before or after they returned, James arrived

at the house. Lewis did not go to pick up James; rather, she came to the house on her own.

Lewis then asked Reed to leave so that he and James could spend some time alone. But Reed

“got an attitude and said he wasn’t going nowhere.” Lewis told him, “[C]ome on man, you

got to go.” Lewis then walked out to the porch. Reed walked out behind Lewis and

immediately put the pistol in Lewis’s side and quickly shot him once. Lewis recalled that

Reed fired only one shot. Lewis then told James that Reed shot him. Lewis gave James his

phone and asked her to call an ambulance.

Cassandra James’s Version

¶6. James testified at trial that Lewis and another man, whose name she did not know,

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drove to her home to pick her up on November 3, 2012. On their way back to Lewis’s house,

Lewis told her that Reed was at his house and had been drinking. When Lewis and James

arrived at Lewis’s house, Reed seemed “a little irate” and “was walking through the house

cursing,” “[b]ut he and [Lewis] were playing and joking around.” James was afraid because

Reed had a gun, so she asked Lewis to ask Reed to leave. Lewis then asked Reed to leave,

and he and Reed both walked out to the porch. Lewis said, “[M]an I want you to leave my

house, get off my porch.” In response, Reed fired his pistol once into the ground to the side

of the porch and said, “Man I’ll shoot you.” Lewis answered, “Man you ain’t gone hurt me,

that little 22 ain’t gone hurt me.” Reed then “put [the gun] to [Lewis’s] stomach and . . . shot

him.” Reed then put the gun in his backpack and walked away down the street. James

testified that she witnessed the shooting from inside the house.

Proceedings in the Circuit Court

¶7. Reed was arrested on November 3, 2012. On February 6, 2013, he was indicted for

aggravated assault and being a felon in possession of a firearm. He was arraigned on March

6, 2013. The same day, he filed a demand for a speedy trial, and his trial was scheduled for

July 22, 2013. Reed filed a pro se motion to dismiss on speedy trial grounds in December

2013, and his attorney filed a second such motion in March 2014. The circuit court denied

Reed’s motions in a detailed written order on June 16, 2014, and the case then proceeded to

trial on July 14, 2014. The jury convicted Reed on both counts. The trial court sentenced

him to concurrent terms of twenty years in the custody of the Mississippi Department of

Corrections (MDOC) for aggravated assault and five years in MDOC custody for felon in

4
possession of a firearm. The trial court subsequently denied Reed’s motion for judgment

notwithstanding the verdict or a new trial, and Reed appealed.

DISCUSSION

I. Speedy Trial

¶8. Reed argues that the trial court erred by denying his motion to dismiss the charges

against him due to a violation of his constitutional right to a speedy trial.2 This Court

analyzes speedy trial claims under the test set forth by the United States Supreme Court in

Barker v. Wingo, 407 U.S. 514, 530 (1972). The Barker test “requires a balancing of four

factors: (1) length of delay; (2) reasons for the delay; (3) defendant’s assertion of his right

to a speedy trial; and (4) prejudice to the defendant.” Taylor v. State, 162 So. 3d 780, 783

(¶6) (Miss. 2015). In Barker, the Supreme Court instructed that “each case must be

considered on an ad hoc basis and that it sought only to identify some of the factors which

courts should assess in determining whether a particular defendant has been deprived of his

right to a speedy trial.” Id. at 783-84 (¶6) (citing Barker, 407 U.S. at 530) (internal quotation

marks omitted). In addition, the Supreme Court has held that courts must “engage in a

difficult and sensitive balancing process” of the four factors because none of the factors is

“either a necessary or sufficient condition to the finding of a deprivation of the right of

speedy trial. Rather, they are related factors and must be considered together with such other

circumstances as may be relevant.” Barker, 407 U.S. at 533.

¶9. We will uphold a trial court’s factual determination regarding whether delay arose

2
Reed does not assert a violation of his statutory right to a speedy trial. See Miss.
Code Ann. § 99-17-1 (Rev. 2015).

5
from good cause if it is based on substantial, credible evidence. DeLoach v. State, 722 So.

2d 512, 516 (¶12) (Miss. 1998). “The [S]tate bears the burden of proving good cause for a

speedy trial delay, and thus bears the risk of non-persuasion.” Id.

A. Length of Delay

¶10. “The calculation of the time elapsed begins with the defendant’s arrest, indictment,

or information.” Stark v. State, 911 So. 2d 447, 450 (¶7) (Miss. 2005). Reed was arrested

on November 3, 2012, and his trial was held July 14, 2014, which amounts to a total time

elapsed of 619 days, or 1 year, 8 months, and 12 days. A “delay of more than eight months

is presumptively prejudicial” and warrants a “full Barker analysis.” McBride v. State, 61 So.

3d 138, 142 (¶7) (Miss. 2011). But even “when the delay is presumptively prejudicial[,] that

does not mean that actual prejudice to the defendant exists. Rather, actual prejudice is

determined at a different point in the Barker analysis.” Taylor, 162 So. 3d at 784 (¶7)

(quoting Johnson v. State, 68 So. 3d 1239, 1242 (¶7) (Miss. 2011)).

B. Reason for the Delay

¶11. “Once the delay is deemed presumptively prejudicial, the burden shifts to the [State]

to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of

these reasons.” McBride, 61 So. 3d at 142 (¶9).

¶12. As discussed above, Reed was arrested in November 2012, and the court initially set

his trial for July 2013. Ultimately, the trial was delayed for approximately one year as a

result of a series of continuances. The trial court’s order explains that trial was continued

several times because Reed asked that his case be placed on the “plea docket,” and his case

6
was set for a plea and removed from or continued on the trial docket, but in each instance

Reed ultimately decided not to plead guilty. It appears that this pattern by Reed and

associated plea negotiations caused delays totaling four to eight months. Delays totaling at

least four months appear to be attributable to “docket congestion.” Finally, some period of

delay appears to be attributable, at least in part, to the fact that in January 2014, “lead counsel

for the State . . . was terminated without any prior notice,” and co-counsel was scheduled for

a leave of absence that same month due to the birth of his first child.

¶13. The Supreme “Court has held repeatedly that ‘[d]elays caused by overcrowded

dockets are not to be weighed heavily against the State.’” Taylor, 162 So. 3d at 784 (¶8)

(quoting State v. Magnusen, 646 So. 2d 1275, 1282 (Miss. 1994)). “While lamentable, it is

nonetheless true that courts in the more populated areas of our state”—including Hinds

County in particular—“maintain a criminal docket which is so large that delay in bringing

defendants to trial is a rueful byproduct.” Id. at 785 (¶8) (quoting Travis v. State, 13 So. 3d

320, 329 (¶28) (Miss. Ct. App. 2008)). Accordingly, delay due to a crowed docket “weighs

only slightly against the State, if at all.” Id. at (¶9).

¶14. A “delay attributable to the defense is not counted against the State.” Muise v. State,

997 So. 2d 248, 252 (¶13) (Miss. Ct. App. 2008). In addition, “[t]ime associated with an

earnest attempt at plea negotiations will not be charged against the State.” Sharp v. State,

786 So.2d 372, 378 (¶8) (Miss. 2001); accord, e.g., Taylor v. State, 672 So. 2d 1246, 1259

(Miss. 1996). Thus, to the extent that the delay in bringing Reed to trial was the result of the

case being set for pleas at Reed’s request and then continued when those pleas did not occur,

7
the delay is not charged against the State.

¶15. Based on the foregoing, the circuit court properly recognized that this factor favored

Reed, but not heavily.

C. Defendant’s Assertion of the Right to a Speedy Trial

¶16. “Although it is the State’s duty to insure that the defendant receives a speedy trial, a

defendant has some responsibility to assert this right.” Taylor, 672 So. 2d at 1261.

Therefore, “the defendant’s assertion of his right to a speedy trial weighs in his favor.”

Franklin v. State, 136 So. 3d 1021, 1034 (¶50) (Miss. 2014). In contrast, “a defendant’s

failure to demand a speedy trial between his arrest and indictment is critical to the analysis

of a speedy-trial claim.” Taylor, 162 So. 3d at 785 (¶10) (internal quotation marks omitted).

The Court weighs “the instant factor against defendants who, although they eventually

asserted the right, allowed a significant amount of time to pass after arrest before demanding

a speedy trial.” Id.

¶17. In the present case, Reed filed a demand for a speedy trial on March 6, 2013. Reed

then filed a pro se motion to dismiss for failure to provide a speedy trial on December 27,

2013, and defense counsel filed a motion to dismiss for failure to provide a speedy trial on

March 27, 2014. The trial judge stated in his ruling on the motion to dismiss that although

Reed’s December 27, 2013 pro se motion was sent to the circuit clerk’s office and filed on

the docket sheet, the court had no record of actually receiving the motion. The trial judge

also noted that defense counsel failed to discuss Reed’s December 27, 2013 motion during

the June 2014 hearing on the matter.

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¶18. Nonetheless, the record is clear that Reed did file a demand for a speedy trial on

March 6, 2013. His subsequent actions, which are described above—setting his case for

pleas that did not occur, requesting that the case be removed or stayed on the trial docket,

etc.—are inconsistent with a desire for a speedy trial, and thus undermine to some extent the

effectiveness and significance of his earlier demand. See Newell v. State, 175 So. 3d 1260,

1271-72 (¶21) (Miss. 2015). However, this factor does weigh in Reed’s favor to some

extent.

D. Prejudice to the Defendant

¶19. “To determine whether the delay resulted in actual prejudice the Court considers three

interests that the right to a speedy trial was meant to protect: ‘(i) to prevent oppressive

pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit

the possibility that the defense will be impaired.’” Taylor, 162 So. 3d at 787 (¶16) (quoting

Jenkins v. State, 947 So. 2d 270, 277 (¶21) (Miss. 2006)). Reed bears the burden of showing

actual prejudice, “since the defendant is clearly in the best position to show prejudice under

[this] prong.” Johnson, 68 So. 3d at 1245 (¶16).

¶20. Reed argues that his lengthy pretrial incarceration was oppressive, stressful, and

unpleasant in the way that any lengthy pretrial incarceration certainly is. However, Reed

presented no evidence of any more specific prejudice, nor has he made any argument that he

was prejudiced in his ability to defend himself at trial. In Taylor, the Supreme Court held

that the defendant failed to show actual prejudice by “simply repeating the factors to be

considered” with “nary a scintilla of evidence to support his claims.” Taylor, 162 So. 3d at

9
787 (¶16). The Taylor Court explained that “generally, proof of prejudice entails the loss of

evidence, the death of witnesses, or the staleness of an investigation.” Id. at 786 (¶15)

(citation omitted). Here, Reed failed to provide evidence to substantiate his claims of

prejudice. This factor weighs against his speedy trial claim.

¶21. Thus, to summarize, the first Barker factor weighs in favor of Reed because a

presumptively prejudicial period of more than twenty months elapsed between his arrest and

trial. Second, the trial judge correctly concluded that the reasons for the delay are “to be

weighed against the State, but not heavily.” Third, Reed asserted his right by demanding a

speedy trial, which weighs in his favor; however, some of Reed’s subsequent actions were

inconsistent with a desire for a speedy trial, so this factor also does not weigh heavily against

the State. Fourth, Reed suffered no actual prejudice to his defense, which weighs in favor

of the State. Our Supreme Court has held that “where, as here, the delay is neither

intentional nor egregiously protracted, and where there is a complete absence of actual

prejudice, the balance is struck in favor of rejecting the defendant’s speedy trial claim.”

Taylor, 162 So. 3d at 787 (¶17) (quoting Watts v. State, 733 So. 2d 214, 236 (¶67) (Miss.

1999) (alterations, brackets omitted) (holding that an eighteen-month delay caused by

crowded dockets did not warrant dismissal on speedy trial grounds); see also, e.g., Johnson,

68 So. 3d at 1241-46 (¶¶5-22) (holding that a nineteen-month delay caused by crowded

dockets did not warrant dismissal despite the defendant’s assertion of his right to a speedy

trial). Therefore, under binding Mississippi precedent, we conclude that the trial judge did

not err by denying Reed’s motion to dismiss the charges against him.

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II. Prior Convictions

¶22. In his pro se supplemental brief, Reed argues that the trial judge committed reversible

error by prohibiting him from impeaching Lewis with evidence of Lewis’s prior felony

convictions.3 We agree and reverse and remand for a new trial.

¶23. In White v. State, 785 So. 2d 1059 (Miss. 2001), our Supreme Court made clear that,

under Mississippi Rule of Evidence 609(a)(1), a defendant is entitled to “full impeachment

of prosecution witnesses” through proof of prior felony convictions. Id. at 1062 (¶10). This

means that a prosecution witness’s prior felony conviction is admissible “without the

requirement of a balancing test except in extreme situations such as where the prosecution

witness has a prior conviction that is both highly inflammatory and completely unrelated to

the charges pending against the accused.” Id. The Court also made clear that a prosecution

witness’s prior felony conviction is admissible under Rule 609(a)(1) regardless of whether

the crime involved dishonesty or a false statement or “relates to the witness’s veracity.” Id.

at 1061 (¶6). That is a requirement of Rule 609(a)(2) but not 609(a)(1). The Court’s

decision in White was based on both Rule 609(a)(1) and the defendant’s constitutional right

to confront the witnesses against him. See id. at 1060 (¶2).

¶24. In this case, Reed was prohibited from impeaching Jimmy Lewis, the State’s key

witness, with Lewis’s prior felony convictions for grand larceny and possession of cocaine.

The trial judge precluded the impeachment because he found that Lewis’s convictions were

not “particularly probative of honesty” and that their “probative value” was “substantially

3
The issue was thoroughly argued and preserved by trial counsel in the circuit court.

11
outweighed by the danger of unfair prejudice to the State.” That ruling is contrary to the

Supreme Court’s decisions in White and Young v. State, 731 So. 2d 1145 (Miss. 1999). The

error cannot be dismissed as harmless because Lewis’s testimony and credibility were critical

to the State’s case.

¶25. Mississippi Rule of Evidence 609(a) provides:

(a) General Rule. For the purpose of attacking the character for truthfulness
of a witness,

(1) evidence that (A) a nonparty witness has been convicted of
a crime shall be admitted subject to Rule 403, if the crime was
punishable by death or imprisonment in excess of one year
under the law under which the witness was convicted, and (B)
a party has been convicted of such a crime shall be admitted if
the court determines that the probative value of admitting this
evidence outweighs its prejudicial effect to the party; and

(2) evidence that any witness has been convicted of a crime shall
be admitted if it involved dishonesty or false statement,
regardless of punishment.

M.R.E. 609(a). Citing White, the comment to the rule explains that

Rule 609(a)(1) was amended in 2002 to incorporate the rationale of decisions
by the Mississippi Supreme Court which recognized the difference in the
highly prejudicial effect of showing the convictions when the witness is the
accused and the little prejudicial effect from such impeachment of other
witnesses. It was reasoned that when the impeachment by convictions is of a
witness other than the accused in a criminal case there is little or no unfair
prejudice which can be caused to a party. Thus, the probative value on the
credibility of the witness will almost always outweigh any prejudice.

Id., cmt.

¶26. In White, “Walter White was convicted of three counts of selling crystal

methamphetamine.” White, 785 So. 2d at 1060 (¶1). At trial, White sought permission to

12
cross-examine a confidential informant about a prior drug conviction unrelated to his service

as an informant. See id. at (¶3). The trial court ruled that the conviction was “inadmissible

because it did not bear on [the witness’s] veracity.” Id. On appeal, the Supreme Court

reversed, holding that the trial court’s ruling not only misinterpreted Rule 609(a) but also

violated White’s rights under the Confrontation Clause. See id. at 1063 (¶12).

¶27. The Court first addressed the question whether Rule 609(a)(1) applies only to

convictions that involve dishonesty or false statements. The Court held that the “plain

language” of Rule 609(a)(1) applies to all felony convictions punishable by death or

imprisonment in excess of one year “whether or not the conviction relates to the witness’s

veracity.” White, 785 So. 2d at 1061 (¶¶5-6). The Court specifically overruled “a long line

of cases” that had held otherwise. Id.

¶28. The Court next addressed the question whether Rule 609(a)(1) requires a “probative

value”/“prejudicial effect” “balancing test” when a criminal defendant seeks to impeach a

witness for the State with a prior felony conviction. See id. at 1061-62 (¶¶7-10). The Court

began by explaining that Rule 609(a)(1) evolved from “the common law edict that a person

convicted of a felony was not competent to testify as a witness. Gradually, this absolute bar

was eroded to the point that a felon’s testimony was competent, but was also subject to

impeachment by evidence of his . . . conviction.” Id. at 1062 (¶7). The Court then stated that

although Rule 609(a)(1) now “extends protection from the prejudicial effect of impeachment

with prior felonies to any party,” it cannot be interpreted “to extend equal protection to both

sides in a criminal case.” Id. at (¶8). As the Court explained, the Confrontation Clause

13
grants the accused broader rights of cross-examination than the State. See id. at (¶9). “Given

the constitutional right of a criminal defendant to confront those testifying against him,” the

Court held that Rule 609(a)(1) “allow[s] full impeachment of prosecution witnesses without

the requirement of a balancing test, except in extreme situations such as where the

prosecution witness has a prior conviction that is both highly inflammatory and completely

unrelated to the charges pending against the accused.” Id. at (¶10) (emphasis added).4 The

Court then held that the informant’s drug conviction did not present such an “extreme” case;

therefore, the trial court committed reversible constitutional error by precluding White from

“impeach[ing] the State’s key witness.” Id. at 1062-63 (¶¶10-12).

¶29. White built off of the Supreme Court’s decision two years earlier in Young, 731 So.

2d at 1149-51 (¶¶29-41). In Young, the defendant in a murder trial (Young) was precluded

from impeaching the State’s key witness (Ross) with a prior burglary conviction. See id. at

1149-50 (¶¶30, 33). The Court explained that the case was readily distinguishable from cases

involving “evidence of a defendant’s prior conviction.” Id. at 1150 (¶¶35-36). When the

State seeks to introduce a defendant’s prior conviction, the court must carefully balance the

conviction’s probative value against the danger of unfair prejudice in order “to prevent a

4
White seems to follow the logic that “all felonies are at least somewhat probative
of a witness’s propensity to testify truthfully.” United States v. Estrada, 430 F.3d 606, 617
(2d Cir. 2005) (emphasis added); see also Hopkins v. State, 639 So. 2d 1247, 1254 (Miss.
1993) (Banks, J., concurring) (“[A]ny felony is per se probative on the issue of
truthfulness.”). A number of other courts have reasoned that the commission of any serious
criminal offense demonstrates a disrespect for the law from which a jury may infer a
willingness to give false testimony, even if the offense does not involve a false statement or
overt dishonesty. See, e.g., State v. Malloy, 639 P.2d 315, 317 (Ariz. 1981); People v.
Atkinson, 713 N.E.2d 532, 540 (Ill. 1999); State v. Hill, 801 N.W.2d 646, 652 (Minn. 2011).

14
defendant from being convicted on the basis of a prior bad act rather than on the evidence

presented at trial regarding the present crime.” Id. at (¶35). In contrast, “Young sought to

use evidence of Ross’s prior burglary conviction for general impeachment purposes under

[Rule] 609(a)(1).” Id. at (¶36). The Court rejected as “flawed” the State’s argument that the

prosecution would have been unfairly prejudiced by allowing Ross’s impeachment. See id.

at 1151 (¶40). Rather, “deny[ing] Young the right to fully explore this aspect of Ross’s

credibility den[ied] him the right to fully confront the witnesses against him.” Id. The Court

held that the trial court abused its discretion by precluding impeachment regarding the

burglary conviction and reversed and remanded for a new trial. Id. at (¶41).

¶30. Finally, a year after White, the Supreme Court again made clear that “except in

extreme situations,” a trial court may not weigh the “probative value” of a prior conviction

of a prosecution witness against any alleged “prejudicial effect” it may have on the State’s

case. Jefferson v. State, 818 So. 2d 1099, 1110 (¶¶26-27) (Miss. 2002). Except in an

extreme case, “[n]o balancing test should [be] conducted,” and it is “an abuse of discretion

to do so.” Id. In Jefferson, the Supreme Court found that “the trial judge . . . made the same

mistake as the trial courts in White and Young”—i.e., based on a “balancing” analysis, he

precluded the defendant, who was on trial for murder, from impeaching a prosecution

witness with the witness’s prior conviction for selling cocaine. Id. at (¶27).5

¶31. As described above, the present case turned primarily on the conflicting testimony and

5
The error was deemed harmless because “on cross-examination, [the witness]
volunteered that . . . he was a convicted felon” and there was “overwhelming proof of [the
defendant’s] guilt.” Id. at (¶28).

15
credibility of three witnesses: Reed, Lewis, and James. James corroborated Lewis’s claim

that Reed shot him, but her version of events also conflicted with Lewis’s in some respects.

¶32. At trial, Reed sought to impeach Lewis with two prior felony convictions: a 2008

conviction for grand larceny and a 2011 conviction for possession of cocaine.6 Lewis

admitted that at the time he was shot, he was still on probation imposed as a result of the

2011 conviction. Reed’s attorney argued that Lewis’s prior convictions were admissible

under Rule 609(a) and the Confrontation Clause. He also argued that the convictions

established a strong motive for Lewis to lie: if Lewis had admitted that he was carrying the

gun, his probation could have been revoked, and he could have been charged as a felon in

possession of a firearm and sentenced as a habitual offender. As noted above, the trial judge

precluded Reed from cross-examining Lewis regarding the convictions because he found

they were not “particularly probative of honesty” and that their “probative value” was

“substantially outweighed by the danger of unfair prejudice to the State.”

¶33. The trial judge’s ruling excluding evidence of Lewis’s prior convictions for grand

larceny and cocaine possession cannot be distinguished from the erroneous rulings of the trial

judges in White, Young, and Jefferson. In White, a drug case, the Supreme Court held that

the defendant was entitled to impeach the State’s key witness with the witness’s unrelated

prior drug conviction. White, 785 So. 2d at 1063 (¶12). In Young, a murder trial, the Court

held that the defendant was entitled to impeach the State’s key witness with a prior burglary

6
Reed’s proffer also included evidence that Lewis was convicted twice of domestic
violence and once of simple assault on a police officer. However, the abstracts proffered
seems to indicate that these three offenses were treated as misdemeanors, which means they
would not be admissible under Rule 609(a).

16
conviction. Young, 731 So. 2d at 1151 (¶41). And in Jefferson, a murder trial, the Court held

that the defendant was entitled to impeach a key prosecution witness with a prior conviction

for selling cocaine. Jefferson, 818 So. 2d at 1112 (¶36). None of those convictions involved

false statements, had any special probative value as it related to the witness’s honesty, or had

any significant relationship to the charges against the accused. However, the Supreme Court

made clear that none of that mattered because a criminal defendant has a right, under the

Constitution and Rule 609(a)(1), to “full impeachment of prosecution witnesses without the

requirement of a balancing test, except in extreme situations such as where the prosecution

witness has a prior conviction that is both highly inflammatory and completely unrelated to

the charges pending against the accused.” White, 785 So. 2d at 1062 (¶10) (emphasis added).

This case did not involve an “extreme situation.” Cocaine possession and grand larceny are

felonies, but there is nothing “highly inflammatory” about Lewis’s convictions. On this

issue, this case is indistinguishable from White, Young, and Jefferson. It follows that the trial

court abused its discretion by excluding the evidence based on a “balancing test.”

¶34. Moreover, in this case, Lewis’s prior convictions were more than just generally

relevant to his credibility. As Reed’s trial counsel argued, they also established a substantial

potential motive for Lewis to lie in this case. As a convicted felon, if Lewis had admitted

to police that he shot himself after he borrowed and knowingly possessed Reed’s gun, he

could have been charged as a felon in possession of a firearm. Based on his two prior felony

convictions and sentences, he also could have been sentenced as a habitual offender. Finally,

at the time he was shot, Lewis was still on probation as part of his sentence for possession

17
of cocaine. His probation could have been revoked for possessing a gun. Thus, in addition

to being generally relevant to his credibility, Lewis’s prior felony convictions were evidence

of a strong motive for him to deny Reed’s version of events. Indeed, the United States

Supreme Court has held that the Confrontation Clause protects the accused’s right to cross-

examine a prosecution witness on this precise issue. Davis v. Alaska, 415 U.S. 308, 309-18

(1974) (holding that the defendant was entitled to cross-examine a key prosecution witness

about his probationary status in order to explore his possible motives for identifying the

defendant, such as to shift suspicion away from himself).

¶35. Thus, the trial judge erred by precluding Reed from impeaching Lewis with Lewis’s

prior felony convictions. The only remaining issue is whether the error requires reversal or

was harmless. Here, it is important to remember that the error involves not only a

misapplication of the rules of evidence but also a violation of the Confrontation Clause.

“The basic, harmless-error test in such instances is ‘whether it appears beyond a reasonable

doubt that the error complained of did not contribute to the verdict obtained.’” Goforth v.

State, 70 So. 3d 174, 187 (¶57) (Miss. 2011) (quoting Brown v. State, 995 So. 2d 698, 704

(¶25) (Miss. 2008)) (internal quotation marks omitted).

¶36. In the final sentence of the argument section of its brief, “the State submits,” without

any elaboration, that any “error was harmless in light of the overwhelming proof of Reed’s

guilt.” We cannot agree that the evidence presented at trial was overwhelming. The trial

turned on whether the jury believed Lewis and his girlfriend, whose own stories differed in

significant respects, or Reed. Given the inconsistencies between Lewis’s and James’s

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testimonies and James’s relationship with Lewis, it is likely that the jurors’ decision simply

turned on who they found more credible, Lewis or Reed. The exclusion of Lewis’s prior

felony convictions was especially prejudicial to Reed because the Court expressly instructed

the jury that Reed was a convicted felon.7 Thus, the jury was told that Reed was a convicted

felon, but Reed was prohibited from showing that the same was true of Lewis or that Lewis

had a significant motive to lie. Under these circumstances, it is impossible for us to say

“beyond a reasonable doubt” that the exclusion of evidence bearing on Lewis’s credibility

“did not contribute to the verdict obtained.” Id.

CONCLUSION

¶37. Although we affirm the trial judge’s ruling that Reed’s constitutional right to a speedy

trial was not violated, we reverse and remand for a new trial. As in White and Young, the

error in prohibiting Reed from cross-examining Lewis regarding his prior convictions cannot

be deemed harmless. Therefore, Reed’s conviction must be reversed and the case remanded

for a new trial.

¶38. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY, FIRST
JUDICIAL DISTRICT, IS REVERSED, AND THIS CASE IS REMANDED FOR A
NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS
COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR
AND GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION.

7
The indictment alleged that Reed was convicted of selling cocaine in 2002. In a
motion to amend the indictment, the State alleged that he had pled guilty to charges of house
burglary and grand larceny on an unspecified date. Reed stipulated that he was a prior
convicted felon for purposes of the felon-in-possession charge, and the court instructed the
jury that Reed had “been convicted of a felony prior to November 3, 2012.”

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