Bobby Tyrse CLEMONS
v.
STATE of Mississippi.
Supreme Court of Mississippi.
*884 Edmund J. Phillips, Jr., Newton, Attorney for Appellant.
Office of the Attorney General by Scott Stuart, Attorneys for Appellee.
Before SULLIVAN, P.J., and BANKS and JAMES L. ROBERTS, Jr., JJ.
JAMES L. ROBERTS, Jr., Justice, for the Court:
STATEMENT OF THE CASE
¶ 1. On November 8, 1996, the Grand Jury of Neshoba County, Mississippi, indicted Bobby Tyrse Clemons (hereinafter "Bobby") for three (3) crimes of murder pursuant to Miss.Code Ann. § 97-3-19(1)(a). After presentation of preliminary discovery and preliminary motions from the defense and prosecution, the Clemons trial commenced with a jury on July 7, 1997, with the Honorable Marcus Gordon presiding. The trial concluded the following day with three (3) guilty verdicts of *885 murder returned. The lower court sentenced Bobby to serve consecutive sentences of life on Counts I and II, and to serve a sentence of life on Count III, to run concurrent with the sentences of Counts I and II. Bobby timely filed his Motion for a New Trial which was denied by the trial court. It is from the foregoing events that Bobby brings this timely appeal asserting the following issues:
I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING DEFENSE COUNSEL'S HEARSAY OBJECTION TO THE TESTIMONY OF SHERIFF McKEE THAT HE HEARD CLEMONS OR HIS BROTHER, KENNY, HAD A FIREARM SIMILAR TO THE MURDER WEAPON?
II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING DEFENSE COUNSEL'S OBJECTIONS TO THE DISTRICT ATTORNEY LEADING WITNESS SUDBERRY BY READING PORTIONS OF SUDBERRY'S STATEMENT AND ASKING IF THEY WERE TRUE?
III. WHETHER THE TRIAL COURT ERRED IN ALLOWING TESTIMONY THAT SUDBERRY HAD AGREED TO PLEAD GUILTY TO ACCESSORY AFTER THE FACT TO THE CRIME FOR WHICH CLEMONS WAS CHARGED?
STATEMENT OF THE FACTS
¶ 2. At trial, Danny Junior Davis testified that on July 15, 1996, Kenny Clemons came to see him at his home in Preston, Mississippi. Kenny was the younger brother of Bobby Clemons. While he was at the home of Davis, Kenny proceeded to borrow a nine-millimeter pistol from Davis. After the alleged incident, Sheriff Mike McKee of the Kemper County Sheriffs Department went to visit Davis to question him about the gun. It was at this time that Davis told the Sheriff that Kenny had borrowed the gun the day before. Sheriff McKee's testimony at trial corroborated this fact.
¶ 3. Timothy Sudberry testified next for the State. (Sudberry is the nephew of Davis). He stated that Bobby and Kenny were at the Preston Store on the day of the incident. Sudberry explained that Bobby told him that Cecil and Frankie Amos had some money and for that reason Bobby was trying to sell some speakers to them. He further testified that later on that day at the Preston Store, Kenny showed him the nine-millimeter borrowed from Davis. Sudberry stated that he had a twenty-five caliber (.25) pistol in his possession. All three boys went behind the Preston Store, where Bobby and Sudberry fired their pistols.
¶ 4. Sudberry stated that Bobby asked Kenny and Sudberry if their consciences would bother them if they were to shoot someone. Kenny responded that it would not bother him to shoot someone. Sudberry told Kenny he did not know how it would feel because he had not shot anyone before. Bobby then told Kenny that he wanted him to kill the Choctaws, meaning Cecil and Frankie. Sudberry told Kenny that he would not participate and placed his gun in the middle of the front seat of the car. The three boys then drove to Cheatham's Store.
¶ 5. Sudberry claimed that it was at this time that they saw Cecil Amos, Frankie Amos and Shirley Davis at the Cheatham Store. He stated that when the car with Cecil, Frankie and Shirley drove off, they followed the car. They soon pulled up beside the car and asked what they were going to do. Cecil, Frankie and Shirley responded that they were going to the Mound to drink beer. Bobby responded that they would meet them there.
*886 ¶ 6. Sudberry testified that he, Bobby and Kenny drove to the Nanihwaiya Cave. Sudberry also stated that Bobby told Kenny he wanted to use the big gun and took the nine-millimeter. Kenny took the twenty-five. Soon afterwards, the Amoses and Shirley arrived. They gave Bobby some beer and played some music tapes. Kenny asked Cecil to bring a tape to his car. Sudberry noted that Bobby told Kenny that after Cecil brought the tape and returned to his car, to follow him back to the car and shoot him.
¶ 7. Sudberry then testified that Bobby and Kenny walked up to the car in which Cecil, Frankie and Shirley were sitting and raised their pistols. It was at this time, Sudberry stated, that he lay down in the seat of the car. He heard six or seven shots being fired. Sudberry claimed that he heard Kenny say that one of them was still moving and then heard another shot. The three young men left the caves immediately after the shooting.
¶ 8. Sudberry further testified that after the incident, Kenny gave the .25 caliber pistol back to Sudberry. Sudberry hid the pistol in a hole on the side of the road on the day Kenny was arrested.
¶ 9. Serena Chapman testified that she found Cecil, Frankie and Shirley in Cecil and Frankie's mother's car at 7:00 a.m. the following morning in the Nanihwaiya Cave area. She stated that she saw blood and immediately went to Cheatham's Store to call an ambulance.
¶ 10. Tommy Thornton, a criminal investigator with the Neshoba County Sheriffs Department, was called to testify about the investigation of the murders of Cecil, Frankie and Shirley. He stated that of the shell casings found at the scene of the crime, two were fired from a .25 caliber pistol and the rest from a nine-millimeter.
¶ 11. Dr. Steven Timothy Hayne, a forensic pathologist, was also called as an expert witness by the State. His testimony specifically concerned the gunshot wounds suffered by the three victims, both lethal and non-lethal.
¶ 12. The State also called Steve Byrd as a witness. Mr. Byrd noted that he was employed as a forensic scientist, specializing in firearms evidence examinations, by the Mississippi Crime Laboratory in Jackson. He examined the firearms involved in the incident and determined that there was a positive relationship between the two firearms and the projectiles and cartridge cases that were found at the scene of the crime. He further stated that it was evident that projectiles found were fired in the particular firearms used to commit the murders. After Byrd's testimony, the State rested its case.
¶ 13. The defense first called John Gale to testify that he was using the outside phone, on and off, at the Preston Store on the day of the incident. He stated that he saw Kenneth and Sudberry shooting guns behind the store during the afternoon of the incident. He further noted that he saw Bobby, Kenny and Sudberry head in the direction of the Nanihwaiya Caves around 8:30 p.m. that evening. He also confirmed that he spoke with Daniel Junior Davis at the Preston Store around 9:00 p.m. Daniel and his girlfriend, Crystal, were apparently looking for the three young men to retrieve his gun. He later saw Davis pass back by the Preston Store around 9:30 p.m. and Bobby, Kenny and Sudberry passed by the Preston Store around 9:40 p.m. They returned to the Preston Store around 9:45 p.m. Gale then joined the three young men, along with Andrew Hickman, and all five traveled to DeKalb around 10:00 or 10:15 p.m. and later returned home around 12:00 a.m.
¶ 14. The defense then called Bobby as a witness. Bobby testified that he and his brother, Kenny, went to Cheatham's Store to get their father some cigarettes and a soda. He stated that Sudberry asked that he and Kenny wait at the store until he returned from going somewhere with his uncle, Davis. Bobby replied that he had to take the cigarettes and soda back home to *887 his father. Bobby asserted that Sudberry left with Davis traveling toward the Nanihwaiya Caves. He also noted that Davis was in possession of the nine millimeter and Sudberry was in possession of the .25 caliber pistol. Bobby then testified that he arrived home around 9:00 p.m. and visited with his family for fifteen to twenty minutes, at which time he returned to Cheatham's Store. He stated that Sudberry was waiting for them at the store, but that Davis was not present. He also confirmed Gale's testimony that the five boys then went to DeKalb between 10:00 and 10:15 p.m. and returned to Preston around 12:00 a.m. In cross-examination, Bobby admitted that he was at the Preston Store around 2:00 p.m. He also admitted that he saw and spoke with Cecil Amos, Frankie Amos, and Shirley Davis.
¶ 15. The defense then called Bobby's father, Kenneth Clemons, and his sister, Sherry Lynn Clemons, and Bobby's mother, Sherry Clemons. They all testified that they had seen Bobby during the evening in question around 8:30 p.m. His sister further stated that she saw Bobby a second time a little before 10:00 p.m. After this testimony, the defense rested its case.
¶ 16. The State recalled Sudberry for its rebuttal testimony. Sudberry's testimony simply confirmed his earlier testimony. The State then rested in rebuttal.
DISCUSSION OF THE ISSUES
I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING DEFENSE COUNSEL'S HEARSAY OBJECTION TO THE TESTIMONY OF SHERIFF McKEE THAT HE HEARD CLEMONS OR HIS BROTHER, KENNY, HAD A FIREARM SIMILAR TO THE MURDER WEAPON?
¶ 17. Clemons argues that impermissible hearsay was allowed and the evidence was prejudicial in that it was proof of possession of the murder weapon by Clemons' and his brother which supported the State's theory that they had borrowed the pistol from Davis. The contested testimony while Kemper County Sheriff McKee was on the witness stand is as follows:
Q. (Turner) Before you had gone to Mr. Davis's house, had you already heard that Kenny or Bobby one had had such a gun on their person?
BY MR. BROOKS: Your Honor, we are going to object. That would be hearsay.
BY THE COURT: It would be an exception to the hearsay rule, I think. Overruled. Without saying what you heard.
A. Yes, sir.
Q. (Turner) You had already heard that?
A. Yes, sir.
Clemons contends that this statement was classic hearsay citing Mississippi Rule of Evidence 802. This rule provides, "Hearsay is not admissible except as provided by law."
¶ 18. In Peterson v. State,
Under the Supreme Court's standard of review, the admissibility of evidence rests within the discretion of the trial court. However, this Court must also determine whether the trial court employed the proper legal standards in its fact findings governing evidence admissibility. If in fact the trial court has incorrectly perceived the applicable legal standard in its fact findings, the Court applies a substantially broader standard of review. However, a denial of a substantial right of the defendant must have been affected by the court's evidentiary ruling. Furthermore, the trial court's discretion must be exercised within the scope of the Mississippi Rules of Evidence and reversal will be appropriate *888 only when an abuse of discretion resulting in prejudice to the accused occurs.
Peterson,
¶ 19. Rule 801 provides the definition of hearsay as "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Miss. R. Evid. 801(c). The statement made by a third party to the Sheriff was an out-of-court statement by persons other than the witness, Sheriff McKee. Therefore, it must be determined whether or not the statement of the third party was offered for the truth of the matter asserted, namely that Clemons and his brother had possession of the pistol.
¶ 20. The State argues that the statement that was made was offered not for the truth of the statement, but to show why Sheriff McKee went to Davis's home to determine if he had the gun that was used in the murder. Consequently, it asserts that the statement was not hearsay. The State cites to Gayten v. State,
¶ 21. However, the case of Swindle v. State,
¶ 22. This Court finds that whether Clemons and his brother were in possession of the murder weapon on the day of the incident was at issue in the case sub judice. Thus, the statement if true would be prejudicial to Clemons's defense. "This rule of non-hearsay imports an objective test. The question is not the actual subjective state of mind of the prosecuting attorney, much less of the declarant, but rather a matter of how a reasonable objective observer would under the circumstances be likely to perceive the statement." Turner v. State,
*889 ¶ 23. However, although this Court has determined that the out of court statement that was testified to by Sheriff McKee was introduced for the truth of the matter asserted and it should not have been admitted into evidence, we believe this error was harmless given the other evidence presented which proved Clemons and his brother had possession of the pistol. Alford v. State,
II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING DEFENSE COUNSEL'S OBJECTIONS TO THE DISTRICT ATTORNEY LEADING WITNESS SUDBERRY BY READING PORTIONS OF SUDBERRY'S STATEMENT AND ASKING IF THEY WERE TRUE?
¶ 24. Clemons next contends that when Sudberry was on the stand the trial court improperly overruled his objection to a leading question asked by the prosecutor during re-direct. He maintains that through leading questions the prosecutor elicited testimony regarding the statement Sudberry gave the police concerning his account of what happened during the murders. Clemons argues that these questions bolstered Sudberry's direct testimony. He maintains that his conviction should be reversed on this basis.
¶ 25. This Court stated the rule to be applied when reviewing a trial court's decisions regarding leading questions in Whitlock v. State,
A leading question is one that suggests to the witness the specific answer desired by the examining attorney. Trial courts are given great discretion in permitting the use of such questions, and unless there has been a manifest abuse of discretion resulting in injury to the complaining party, we will not reverse the decision. This is because the harm caused is usually inconsiderable and speculative, and only the trial court was able to observe the demeanor of the witness to determine the harm.
Whitlock,
¶ 26. If these were leading questions, the trial judge did not manifestly abuse his discretion since any harm was "inconsiderable and speculative." Whitlock,
III. WHETHER THE TRIAL COURT ERRED IN ALLOWING TESTIMONY THAT SUDBERRY HAD AGREED TO PLEAD *890 GUILTY TO ACCESSORY AFTER THE FACT TO THE CRIME FOR WHICH CLEMONS WAS CHARGED?
¶ 27. Clemons argues that he was denied a fair trial because the State introduced evidence that Sudberry had agreed to plead guilty to being an accessory after the fact. The direct examination of Sudberry included the following:
Q. And, because of that, you have been indicted as being an accessory after the fact of murder; is that correct?
A. Yes, sir.
Q. And, you have agreed to plead guilty to be sentenced
A. Yes, sir.
Q. to that charge?
A. Yes, sir.
Q. Is that correct?
A. Yes, sir.
¶ 28. This case is extremely similar to Robinson v. State,
¶ 29. Clemons relies upon Johns v. State,
¶ 30. Moreover, whether an error in admitting this evidence is sufficiently prejudicial to warrant reversal may be resolved differently where the offending evidence is no more than a repetition of what is said by the witness before a jury and subject to cross examination, as opposed to evidence of the collective judgment of another jury. Thus, it must be determined whether the admission of the testimony in question was error. It is essentially an evidentiary issue.
"Federal and state appellate courts have found the admission of a co-conspirator's plea of guilty, while incompetent as substantive evidence of the defendant's guilt, may be admissible for other purposes. United States v. Medley,913 F.2d 1248 , 1257-58 (7th Cir.1990); United States v. Davis,766 F.2d 1452 , 1456 (10th Cir.1985); United States v. Wiesle,542 F.2d 61 , 62-63 (8th Cir.1976); State v. Padgett,410 N.W.2d 143 , 146 (N.D. 1987); People v. Brunner,797 P.2d 788 , 789 (Colo.Ct.App.1990); see also State v. Braxter,568 A.2d 311 , 316 (R.I.1990) (guilty plea of accomplice in trial of defendant on same charge admissible when introduced to impeach accomplice, but inadmissible to demonstrate guilt of defendant); State v. Rothwell,308 N.C. 782 ,303 S.E.2d 798 , 800-01 (1983) (guilty plea of co-conspirator admissible when admitted for "legitimate purpose" but never as evidence of defendant's guilt); Greer v. State,188 Ga.App. 808 ,374 S.E.2d 337 , 338 (1988) (no error for admission of accomplice's guilty plea to same crime which defendant is charged where the plea was introduced during the accomplice's testimony and the accomplice was subject to cross-examination by defendant)."
*891 White v. State,
¶ 31. When Sudberry testified he had made an agreement with the State to plead guilty to accessory after the fact, he gave evidence of a prior consistent statement. Miss. R. Evid. 801(d)(1) would control here:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him[.]
Because Sudberry's admission that he pled guilty is a statement consistent with his testimony, it would have to fit under the hearsay exception at Subsection (d)(1)(B) for it to be admissible.
¶ 32. This Court confronted the issue of admissibility of prior consistent statements in the case of White v. State,
¶ 33. It was clear from the beginning that Sudberry's credibility was central to this case. His credibility was vigorously attacked on cross-examination. Prior inconsistent statements from Sudberry were elicited, admitted and explained. Moreover, on cross-examination Sudberry was questioned extensively about the nature of any sentencing arrangement he was receiving from the State. It is hard to believe that, but for the introduction of the guilty plea, this attack on Sudberry would not have been made. He was the primary witness against Clemons. Finally, without his testimony about any previous guilty plea, Sudberry made a detailed, in-court confession of his guilt. He clearly established the fact that he was guilty of the crime of accessory after the fact. Sudberry admitted that he was present in the car at the time of the incident, and after the murders it was he that hid the murder weapon. Moreover, he was subjected to a searching cross-examination by defense counsel. When Sudberry went one step further on direct examination and testified that he had previously pleaded guilty to the same crime, he added nothing to his otherwise competent testimony. Under these circumstances, the premature references and testimony cannot be deemed error sufficient to warrant reversal.
¶ 34. This Court did find reversible error in Johns where evidence that the witness/accomplice had been convicted was introduced, notwithstanding the fact that the conviction was based on facts not involving the defendant and the fact that the witness was attacked on cross examination regarding the nature of the arrangement between her and the State. Johns,
*892 ¶ 35. Clemons further argues that defense counsel rendered ineffective assistance by failing to object to the testimony. The standard of review for ineffective assistance of counsel is set out in Strickland v. Washington,
¶ 36. Clemons supports this contention with the holding of Johns, in which this Court held that failure to object to testimony that an alleged accomplice had been convicted of the same crime was ineffective assistance of counsel. Johns,
¶ 37. However, in the case sub judice the admission of Sudberry's guilty plea agreement was not found to be reversible error and thus, was not objectionable. However, even if it were determined that defense counsel's failure to object was deficient, this deficient performance did not prejudice Clemons. This Court does not believe that had defense counsel objected, there was a reasonable probability that the jury's verdict would have been different. "`A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Cole v. State,
¶ 38. Before the State mentioned Sudberry's guilty plea agreement, Sudberry testified as to the facts surrounding the murders. Sudberry stated that he watched Clemons and his brother walk over to the Amoses vehicle, both carrying a gun. He saw both boys raise their guns towards the car. Sudberry then testified that it was at this time that he ducked down in the backseat of the car. Immediately afterwards, Sudberry heard shots fired. Sudberry then stated that they left the park. It was at this time that Sudberry admitted that he kept his mouth shut about the murders and even buried the gun used by Kenny Clemons. All of this information was before the jury before it was aware that Sudberry was going to plead guilty to accessory after the fact. Furthermore, there was additional testimony before the jury linking the guns used in the murder to the Clemons brothers. Consequently, there was more than enough evidence in support of the jury's verdict. Therefore, the second prong of the Strickland test is not met. There is no showing of ineffective assistance of counsel.
CONCLUSION
¶ 39. This Court finds that: (1) the trial court did not commit reversible error in admitting testimony of Sheriff McKee that he heard from a third party that Clemons and his brother had possession of the pistol used in the murders; (2) the trial court did not abuse its discretion in allowing the *893 State to use leading questions in its redirect of witness Sudberry; and (3) the admission of Sudberry's testimony that he had an agreement to plead guilty to accessory after the fact was not error sufficient to warrant reversal.
¶ 40. COUNT I: CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED. COUNT II: CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY WITH SENTENCE IN COUNT I. COUNT III: CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED. SENTENCE IN COUNT III SHALL RUN CONCURRENTLY WITH SENTENCE IN COUNTS I AND II. APPELLANT IS GIVEN CREDIT FOR JAIL TIME SERVED.
PRATHER, C.J., SULLIVAN and PITTMAN, P.JJ., and BANKS, SMITH, MILLS and WALLER, JJ., concur.
McRAE, J., concurs in result only.