MR2 owner and boyfriend killed

Source: The Supreme Court of Mississippi
Date: November 8, 1994

Willie Jerome Manning vs State of Mississippi

PITTMAN, PRESIDING JUSTICE, FOR THE COURT:

1. Willie Jerome Manning was indicted during the July 1994 term of the Circuit Court of Oktibbeha County in a two count indictment: Count 1 for the capital murder of Jon Steckler while   engaged in the commission of a robbery in violation of Miss. Code Ann. 97-3-19 (2)(e) (1994)   and as being an habitual offender in violation of Miss. Code Ann. 99-19-83 (1994); and Count 2 for the capital murder of Tiffany Miller while engaged in the commission of a robbery in violation   of Miss. Code Ann. 97-3-19 (2)(e) (1994) and as being an habitual offender in violation of Miss.   Code Ann. 99-19-83 (1994). Manning was tried and convicted of both counts of capital murder. The trial court then conducted the habitual offender hearing and found Manning to be an habitual offender and subject to life without parole. Thereafter, the jury listened to evidence and argument in aggravation and mitigation of the sentence to be imposed. The jury returned two sentences of death by lethal injection. December 16, 1994 was set as the date of execution. A motion for j.n.o.v. or in the alternative, a new trial, was filed on November 18, 1994. An amended motion for j.n.o.v. or in the alternative, a new trial, was filed on December 13, 1994. Hearing was held on these motions on December 13, 1994, and they were denied. The execution of the death sentences was stayed pending appeal to this Court. Manning seeks review of twenty-one alleged errors by the trial court. Manning raises no issues warranting reversal, and the lower court's decision is affirmed. The issues presented on appeal are set out below as quoted from Manning's brief.

STATEMENT OF THE FACTS

2. The facts as reflected by the record in this case show that during the early morning hours of December 11, 1992, Tiffany Miller and Jon Steckler were both shot and murdered in Oktibbeha County, Mississippi. Tiffany and Jon were dating each other and were both students at Mississippi State University in Starkville, Mississippi. They were last seen alive leaving Jon's fraternity house between approximately 12:50 and 1:00 a.m. on December 11, 1992. Jon did not own a car but Tiffany drove a Toyota MR2 sports car. Tiffany lived off campus at University Hills Trailer Park.

3. Jon Steckler, lying in the right side of Pat Station Road in Oktibbeha County, was discovered by a motorist at approximately 2:15 a.m. that same morning. Sheriff Deputy Robert Elmore arrived on the scene at approximately 2:33 a.m. Jon still had a pulse and the deputy called for an ambulance. It was at this time the deputy also saw drag marks through the gravel road up into the woods on the side of the road where he discovered Tiffany's body. There was a large amount of blood on the road. Tiffany was found with one leg out of her pants and underwear, and with her shirt pulled up.

4. Tiffany had been shot twice in the face at close range, once in the left mid-forehead, and once around the mouth going through the lips. Either shot would have been fatal. Both projectiles were recovered from Tiffany's body. Jon's body had extensive abrasions which occurred prior to his death. Jon was shot once in the back of the head, which ultimately caused his death. The other injuries Jon received were consistent with being run over by a car at low speed. Neither body had any jewelry on it with the exception of a small silver fraternity medallion around Jon's neck.

5. At the murder scene, deputies discovered a gold token, three hulls or shell casings, and a projectile near to where Jon had been lying. The token was found between two large puddles of blood. Jon's wallet was still in his back pocket, but it did not contain any money. A set of car tracks went through the puddles of blood and had run over Jon Steckler.

6. Tiffany Miller's car was found the next morning parked in front of some apartments on Old Mayhew Road. Blood was found on the car, under the car, on the sides of the car, as well as on the mud flaps and the spoiler. Hair and flesh were also found on the underside of the car. Some coins were found on the pavement by the driver's side door. Several more coins and a ring belonging to Tiffany were found about a hundred yards from the apartment complex driveway on the shoulder of Old Mayhew Road. These items were also approximately a hundred yards from Tiffany's residence at University Hills Trailer Park.

7. Around 11:00 p.m. the evening before the murder, a fraternity brother of Jon's, John Wise, loaned his car keys to his roommate so that he could retrieve a liter of Coke from Wise's car. Wise's car was parked outside the fraternity house. Approximately two and a half hours later, (1:30 a.m. on December 11, 1992), Wise went out to his car to get a cupcake he had purchased earlier. At that time he noticed that the door to the passenger side of the car was unlocked. He retrieved the cupcake quickly and locked the door. Around 8:00 a.m. or 9:00 a.m. later that morning, he again went out to his car and found that it had been burglarized. There was no sign of forced entry to the vehicle.

8. Wise related that the following items had been taken from his car: a portable CD player and adapter, a brown leather bomber jacket, a silver monogrammed huggie, and several dollars in change that he kept in the console. Included in this change was a rest room token that Wise received at a Grenada, Mississippi gas station. Only two places in the State of Mississippi use this type of token: a Kentucky Fried Chicken store in Laurel, and a Dutch Oil Company gas station in Grenada. Wise still had the box the CD player came in, which included the serial number of the CD player.

9. Jon wore a class ring from Cathedral High School in Natchez, Mississippi. He also wore a watch which had little clocks on the face of the watch. The appellant, Willie Jerome Manning, attempted to sell a class ring immediately after the murders. He also tried to sell a watch which matched to description of Steckler's watch.

10. After hearing about the car burglary, the sheriff contacted John Wise. Wise identified the coin found at the murder scene as being exactly like the rest room token taken out of his car. The sheriff then began to search for whoever burglarized Wise's car as the possible murderer. The silver huggie was found in April of 1993 by the Starkville Fire Department when they were flushing out a hydrant on Industrial Park Road just south of Starkville. This area is approximately five miles from where Manning lived with his mother. Manning then became the primary suspect in the case.

11. Paula Hathorn had dated Willie Jerome Manning. In the fall of 1992, Hathorn lived with Manning on and off at Ruth Ann Bishop's house. Bishop is Manning's mother. Hathorn testified that she saw Manning on December 9, 1992. He told her he was going to Jackson, Mississippi. He had with him a gun and some gloves. Hathorn next saw him on December 14, 1992. Manning no longer had the gun. At that time he brought several items into the house. One item was the leather jacket belonging to John Wise. Manning wore this leather jacket until a county deputy appeared at his mother's house. Word was out on the street that Manning was in possession of some jackets. Manning then gave Hathorn the jacket in the middle part of January or the first part of February, 1993.

12. Manning also brought in a CD player. Manning took the CD player to a business called Sound Reasoning. Using an assumed name, Manning attempted, but failed to sell the CD player at the store. Manning actually sold the Panasonic CD player to Emmitt Johnson on New Year's Eve. Johnson later pawned the CD player in Jackson, MS at Metro Pawn. Metro Pawn recorded the serial number of the CD player when it was pawned. It matched the serial number of the CD player stolen from John Wise's car.

13. Manning also had a watch which matched the description of the one worn by Jon Steckler. Several days after the murders, Manning attempted to sell such a watch, as well as a gold ring similar to Steckler's class ring, to Barbara Duck. At the time he wore a leather jacket also similar to the one stolen from John Wise. Another witness also saw Manning wearing a leather jacket similar to Wise's, and a gold class ring and watch similar to Steckler's in December of 1992.

14. In April of 1993, Sheriff Dolph Bryan asked to speak with Hathorn. The sheriff asked Hathorn if Manning had any leather jackets. She then gave the sheriff the jacket Manning had given her. John Wise positively identified the jacket as the one which was stolen out of his car the night of December 10-11, 1992.

15. Hathorn also testified Manning used to target practice with a gun into trees and cans around his mother's house. She noticed him shooting into a particular tree at his mother's house in the first part of December of 1992. Based on Hathorn's statement to the sheriff, a search warrant was obtained for Ruth Ann Bishop's house. Investigators recovered .380 projectiles and slugs out of the tree described by Hathorn. The projectile found at the scene and the two projectiles taken from Tiffany Miller's body were fired from the same weapon as the projectiles taken from the tree into which Manning fired. Hathorn admitted that she had been convicted in the past for false pretense, and had not been promised anything in order to testify. The sheriff also confirmed Hathorn had not been promised leniency for her testimony.

16. Several witnesses put Manning at the 2500 Club in Starkville, MS on the night of the murders. However, only one witness, Gene Rice, could place Manning at the club at the time the murders occurred. He testified that he got into an argument with Manning that night because he was dancing with Paula Hathorn, Manning's girlfriend. None of the other witnesses knew Gene Rice or could remember him or Paula being at the club. None of them remembered a fight or argument either. Rice also gave conflicting statements about the time he last saw Manning at the club. At trial, he testified that he saw Manning around thirty to forty-five minutes before he left the club around 2:00 a.m. or 2:30 a.m. Rice gave a statement to the sheriff saying that he last saw Manning at the club at 12:30 a.m. or 1:00 a.m. None of the other witnesses could place Manning at the club past 12:30 a.m., and only one other could place him there that late.

17. When Manning was not staying at his mother's house, he would stay with friends. One friend was named Keith. Keith Hamlet owned a house and some property on Lampkin Road, which is approximately five miles from where Jon and Tiffany were killed.

18. In May of 1993, when Manning was incarcerated in the Oktibbeha County jail, an inmate by the name of Frank Parker overheard him speaking to another inmate by the name of Miami about pawning some guns. Manning told Miami that he didn't think they could convict him of the crime. Miami asked him what he did with the gun. Manning stated, "I had sold it on the street."

19. Also in May of 1993, Earl Jordan was incarcerated with Manning in the Oktibbeha County jail. Jordan was a cousin to Manning. Manning told Jordan that he had killed the students. Manning assured him he was not joking. Later that day, Manning related to Jordan that he and another man (Jesse Lawrence) were burglarizing a car at Mississippi State when they saw the two students. Manning pulled a gun on them and forced them into the car and drove off. They drove for awhile and then Manning ordered the students out of the car. According to the version Manning gave Jordan, Lawrence told Manning to get rid of the students. Manning then shot them. Manning told Jordan that he and Lawrence left the scene and went to Keith Hamlet's house. This conversation took place before Manning was charged with capital murder. Jordan was not promised any leniency or deals in exchange for his testimony. DISCUSSION OF LAW

I. WILLIE MANNING WAS DENIED HIS RIGHT TO EFFECTIVE COUNSEL AT BOTH PHASES OF THE TRIAL.

A. Defense counsel suffered from an obvious and highly prejudicial conflict of interest, exploited by the prosecution in front of the jury.

20. Manning's first assignment of error is that he was denied his Sixth Amendment right to effective assistance of counsel. He claims that his defense attorney, Mark Williamson, suffered from a conflict of interest which was prejudicial to Manning's case.

21. Manning bases his claim of ineffectiveness on the fact that Williamson had, in the past, represented one of the state's key witnesses. Williamson had represented Paula Hathorn on prior charges involving bad checks. At trial, Williamson, on cross-examination, attempted to impeach Hathorn with her prior charges. He brought out that she had agreed to pay the checks, but that she had not yet done so. On re-direct by the State, Hathorn testified that Williamson had been her attorney and that he had failed to take care of the checks as she had expected him to do. The State argues that it was necessary to bring this information out in order to rehabilitate Hathorn, to show why she had not yet paid.

22. Manning asserts that Williamson had a conflict of interest because he represented Hathorn on charges that were a significant source of impeachment. This, Manning argues, hindered Williamson in fully exploring the circumstances of those charges, pleas and sentences in order to protect his own reputation.

23. In order to succeed on his ineffective assistance of counsel argument, Manning must meet the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), adopted by this Court in Stringer v. State, 454 So. 2d 468 (Miss. 1984). " The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686.

24. Manning must meet a two-part test: First, he must demonstrate that Williamson's performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. at 687. Second, Manning must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial. Id. Unless, Manning makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Id.

25. In the case sub judice , Manning challenges the effectiveness of counsel based on loyalty, not competence. His claim is that Williamson had a conflict of interest. In Smith v. State, 666 So. 2d 810, 812 (Miss. 1995), this Court held "[t]he effective right of counsel encompasses the right to representation by an attorney who does not owe conflicting duties to other defendants." Smith, 666 So. 2d at 812(citing Stringer v. State, 485 So. 2d 274, 275 (Miss. 1986)). Actual conflicts of interest have also been found where defense counsel represented the defendant and witnesses for the State against the defendant. See Littlejohn v. State, 593 So. 2d 20 (Miss. 1992); Smith v. State, 666 So. 2d 810 (Miss. 1995).

26. Under the first prong, it must be determined if Manning's counsel was faced with an actual conflict of interest. Under the second prong, "[p]rejudice is presumed only if the defendant demonstrates that counsel 'actively represented conflicting interests' and that 'an actual conflict of interest adversely affected his lawyer's performance'." Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)); Smith v. State, 666 So. 2d 810, 812-13 (Miss. 1995)(quoting Cabello v. State, 524 So. 2d 313, 316 (Miss. 1988)).

27. Manning asserts that Williamson's prior representation of Hathorn hindered his cross-examination of her. He cites Smith and Littlejohn to support his contention that this was an actual conflict of interest that prejudiced him.

28. Both Smith and Littlejohn are distinguishable from the case at hand. In Smith , the defendant was convicted of selling cocaine to an undercover informant. Latham, the state's key witness, sold cocaine at the same location and time as Smith, but to a different informant. Smith and Latham were represented by the same public defender. Latham testified about Smith's participation in the double sale. Latham was not indicted for this charge. Latham had though pled guilty to a previous crime and sentencing was deferred. The public defender had negotiated that agreement with the State. On cross-examination, the public defender asked Latham if he had pled guilty to the previous charge, and Latham responded, "You was my lawyer, you could tell me." The record reflected that the public defender prematurely ended the cross-examination, leaving this Court to wonder why. This Court found that Latham's testimony became a centerpole of the State's case against Smith, and that the dual representation by the public defender of both Latham and Smith constituted an actual conflict of interest. This Court further found that the only explanation for the termination of the cross-examination was the public defender's loyalty to Latham. Smith v. State, 666 So.2d 810, 812-13 (Miss. 1995).

29. The case sub judice is distinguishable from Smith . At the time of the cross-examination in this case, Williamson owed no conflicting duty to Hathorn. In Smith , the public defender was still representing Latham as his sentencing had been deferred. Also, Hathorn was not a co-defendant and was not represented by Williamson on related charges or in any plea negotiations regarding her testimony in the case. In Smith , Latham was implicated, although not indicted, as a co-participant to Smith. Further, the public defender was representing him on a charge for which sentencing had been deferred. As it turns out, the defender continued to represent Latham and Smith for a year after the trial when the charge to which Latham pled guilty was retired to the files, indicating to this Court that Latham was rewarded for his testimony. Id. at 812. Finally, Hathorn's testimony cannot be characterized as the centerpole of the State's case against Manning as Latham's was in Smith. Hathorn was one of a myriad of witnesses for the State including the sheriff, sheriff's deputies, police officers, and FBI agents. Manning argues that Hathorn's testimony alone linked him to the murder weapon. She did testify that she had witnessed him shooting into a tree. More damning testimony came, though, from a ballistics expert who matched the bullets from the tree to those that killed Jon and Tiffany.

30. Littlejohn v. State , 593 So. 2d 20 (Miss. 1992), is also distinguishable. In that case, the attorney who represented the defendant was also counsel for the State's main witness in the trial against her for the same offense. The attorney had negotiated the State's witness's plea bargain. Part of the bargain was that the witness would testify against the defendant in her trial. Littlejohn, 593 So. 2d at 22-23. These facts are clearly distinguishable from the facts in the case at hand. Williamson had merely represented Hathorn in the past on totally unrelated charges. He did not represent her in any plea negotiations related to Manning's case, nor did he have a continuing or conflicting duty to her at the time of trial. See Perry v. State, 682 So. 2d 1027, 1030 (Miss. 1996).

31. The record indicates that Williamson conducted a full cross-examination of Hathorn. He asked her about her previous charges as well as whether she had been offered any deals in exchange for her testimony. It was not brought out until re-direct by the State that Williamson had been her attorney on some of the false pretense charges. The record does not indicate that Williamson's performance was affected by his prior representation of Hathorn.

32. Williamson did not have an actual conflict of interest in his representation of Manning, that affected his performance. Therefore, prejudice cannot be presumed. Manning must therefore, demonstrate the prejudice that he suffered. Perry v. State, 682 So. 2d at 1031. He must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). The question is whether there is a reasonable probability that, absent the errors, the jury would have had a reasonable doubt respecting guilt. Strickland, 466 U.S. at 695.

33. There is no reasonable probability that the result of this trial would have been different if the jury had never known that Williamson had represented Hathorn in the past. It is further pure speculation to assume that the jury, because Williamson was embarrassed by Hathorn's testimony, decided to hold it against Manning. Further, Williamson did not cut short his cross-examination of Hathorn as his representation of her did not come before the jury until re-direct by the State. He explored her prior convictions as well as whether she had been offered any leniency for her testimony. Manning has failed to show any prejudice resulting from Williamson's prior representation of Hathorn, and there is no reversible error here.

B. The other defense counsel, Richard Burdine, failed to provide effective assistance of counsel to Willie Manning at the penalty phase.

34. Manning also asserts that his other defense counsel failed to provide him with effective assistance. Manning complains that Burdine's performance was deficient because he made no opening statement in the penalty phase, only called two character witnesses (Manning's mother and aunt), and gave an incoherent closing argument.

35. Under Strickland, Manning must show that Burdine's performance was deficient and that the deficiency resulted in prejudice to the defense. Id. at 687. This Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. "A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690. "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action' might be considered sound trial strategy'." Id. at 689. "When a defendant challenges a death sentence...the question is whether there is a reasonable probability that, absent the errors, the sentencer...would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695.

36. Manning asserts that he received ineffective assistance of counsel when Burdine failed to make any opening statement. In Gilliard v. State, 462 So. 2d 710, 716 (Miss. 1985), this Court held that the decision to make an opening statement is a strategic one. That holding was reiterated in Cabello v. State, 524 So. 2d 313, 318 (Miss. 1988). Manning offers no caselaw to the contrary and no proof of any prejudice this omission may have caused his defense. This claim is meritless.

37. Manning further asserts that Burdine provided ineffective counsel in failing to investigate thoroughly and to seek out more character witnesses. Burdine put on Manning's aunt and mother. The record reflects that Williamson wrote Burdine several letters informing him of potential penalty phase witnesses. Manning argues that Burdine never investigated or interviewed these witnesses. He further argues that the reason Williamson sent these letters to Burdine (and copies to the court file), was because Williamson was worried that Burdine was not preparing for the penalty phase.

38. "Just as courts presume that counsel's decisions are strategic, so courts are reluctant to infer from silence a lack of strategy." Cabello v. State, 524 So. 2d 313, 319(Miss. 1988); Leatherwood v. State, 473 So. 2d 964, 969 (Miss. 1985). There is no absolute duty to present mitigating evidence. Wiley v. State, 517 So. 2d 1373, 1379 (Miss. 1987). "Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Wiley, 517 So. 2d at 1379. See also Strickland, 466 U.S. at 699 (decision not to seek more character and psychological evidence was reasonable.)

39. It should be noted that Manning does not tell us in his brief what other witnesses should have been called or what mitigation they might have been able to offer. Further, there is nothing in the record to suggest that Burdine failed to contact these other witnesses about whom Williamson wrote to him. The reason for not calling these witnesses simply can not be gleaned from the record. Absent a record, Manning has not shown deficient performance by Burdine. He cannot overcome the presumption that counsel's conduct was within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689.

40. Further, Manning cannot show prejudice. Without knowing what witnesses he thinks should have been called, and what they might have said, we cannot presume that had they been called, the jury would have voted for life instead of death. "The totality of the evidence before the judge or jury should be considered in assessing whether there was prejudice." Leatherwood v. State, 473 So. 2d 964, 969 (Miss. 1985). The totality of the evidence in this case proved that Manning murdered Jon and Tiffany. The murders were brutal, and the victims were college students in the prime of their lives. Additional character witnesses would not have, with any reasonable probability, tipped the balance between mitigators and aggravators. See Strickland, 466 U.S. at 695. A reasonable probability is one sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. This claim is meritless.

41. Finally, Manning argues that he was provided ineffective assistance of counsel because Burdine gave a closing argument that was "at best generic, and at worst incoherent." He asserts that Burdine's performance was substandard. The State argues, and we agree, that as a whole it can not be characterized as incoherent. Certainly, it is not so substandard as to have prejudiced the defense of Manning.

42. Manning cites two cases to support his argument that Burdine was ineffective in his closing argument. First, he relies on Kubat v. Thieret, 867 F.2d 351 (7th Cir.), cert. denied, 110 S.Ct. 206 (1989). In that case the reviewing court found that counsel was ineffective when he gave grossly substandard, rambling, and incoherent argument at sentencing. Id. at 368. In Kubat, the defense attorney did not call any character witnesses and opted to argue for mercy. The court found that the argument did not even amount to that. In fact, it found that the defendant may have been hurt by the argument. Defense counsel admitted that he was "not going to convince" the jury. He even asked the jury to compare the defendant to the victim and said, "[D]ecide the way you feel, Robert Kubat or Lydia Hyde." Id. The court found that counsel made no attempt to present the defendant as a human being. Second, Manning cites State v. Myles, 389 So. 2d 12 (La. 1979), in which the Supreme Court of Louisiana found that defense counsel provided ineffective assistance during closing argument of the sentencing phase. In that case, the Court found that counsel "did little more than acknowledge the existence of an aggravating circumstance, state that the confession may be used as a mitigating circumstance, and submit the matter to the jury." Id. at 30.

43. In the case at hand, Burdine did a considerably better job than either of the defense attorneys in the cases cited. He based his argument on a plea for mercy. He pleaded with the jury to show love for Manning, appealing to their Christian values. He asked them to put aside hate and vengeance, and to punish Manning properly with life imprisonment. He also argued residual doubt to the jury, asking them to think of how they would feel if it was discovered eventually that Manning was not the murderer. He asked them to think about how they would live with that. Further, Burdine argued the facts of the case, and the credibility of witnesses. He argued that the "heinous, atrocious, and cruel" aggravator was not supported by the evidence, and asked the jury to consider Manning's age as a mitigator.

44. Burdine's strategy of pleading for mercy was not a poor strategic choice on the facts of this case, and the argument when read as a whole is not incoherent. It is the opinion of this Court that Burdine's performance was not deficient. Additionally, Manning has not shown any resulting prejudice sufficient to meet the stringent standard set out in Strickland. This claim is meritless.

45. Based on the record in this case, we cannot say that Burdine provided ineffective assistance of counsel. Manning has failed to satisfy the standard set out in Strickland, and as such, we find no reversible error.

II. THE PROSECUTION WAS PERMITTED TO GET INTO THE DEFENDANT'S CHARACTER IN A WAY THAT WAS WHOLLY IMPROPER.

A. The prosecution injected into the trial endless evidence that Willie Manning was a criminal and a generally evil person.

46. Manning's second assignment of error is that witnesses for the prosecution were allowed to testify to prior bad acts of Manning. Manning cites several instances in the record where he contends inadmissible evidence was admitted. First, he complains that Paula Hathorn was allowed to testify that three days after the murders, Manning came into the house carrying loads of goods. He asserts that this evidence should not have been allowed because it was clear that the goods had been stolen.

47. Manning is procedurally barred from asserting this claim because defense counsel failed to raise a contemporaneous objection to this testimony. Hunter v. State, 684 So. 2d 625, 631 (Miss. 1996); Foster v. State, 639 So. 2d 1263, 1270 (Miss. 1994)(quoting Cole v. State, 525 So. 2d 365, 369 (Miss. 1987)).

48. Additionally, this testimony was admissible under Miss.R.Evid. 404(b) which provides:

(b)Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This testimony was admissible, not to show that Manning is a criminal, but to show motive and identity.

49. Manning also argues that it was error for the sheriff to testify that Manning had beaten Hathorn. The sheriff was asked how he had developed Hathorn as a witness. He explained that he knew that Hathorn and Manning had been dating and that Manning had beaten her, and so he thought that she might be willing to talk to him. This information was not elicited by the State. Additionally, the sheriff said it to explain why he thought Hathorn would talk to him. This claim for error has not been properly preserved for review by this Court because defense counsel failed to object to the statement. Hunter, supra.

50. Both instances complained of by Manning are meritless, and we find no reversible error.

B. The prosecution did not stop at Willie Manning's character, but violated the rules with respect to other defense actors as well.

51. Manning asserts that his right to a fair trial was additionally compromised by improper impeachment of his witnesses.

1. The prosecution was permitted to impeach a defense witness with his misdemeanor juvenile offenses.

52. Manning asserts that the State should not have been allowed to cross-examine Keith Higgins on his juvenile offenses. He asserts that under Miss.R.Evid. 609(d), juvenile adjudications are not admissible. The rule provides:

(d)Juvenile Adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

53. The exchange that took place between the prosecutor and Higgins is as follows:

Q: And as a matter of fact in both of those statements, on both of those occasions, what you told them was he wasn't there all night.

A: Naw, I--

Q: Isn't that right?

A: I never did say that. Like I told you at first, look, listen, you--now I'm going to explain it to you, and I'm explaining it just like dis, I'm a young black man up in this system and I know if I do something wrong already got the pencils on my neck, and all they doing is ready to chop it off, and I knew that I couldn't say this man wasn't dare--I mean was dare because I'm already in jail. I got two brothers in jail. I'm already got a charge against me. I knew they was going to throw me away.

Q: Who is they?

A: The system.

Q: The system was going to throw you away for telling the truth?

A: Yeah. They--they gave me six months in jail for public profanity.

Q: Now, Mr. Higgins, being fair, that wasn't your first offense, was it?

A: I never had no felony; only misdemeanor.

Q: How many misdemeanors have you had, Mr. Higgins?

BY MR. BURDINE: I'm going to object now, your Honor. He's getting into that juvenile problem.

A: That--that--that

BY THE COURT: Overruled.

A: --that was when I was a juvenile.

BY THE COURT: Overruled.

Q: I beg your pardon?

A: Well, let me see. I really can't count them. I, you know, I got--

Q: You can't count them all, can you?

A: They should have them on file somewhere.

Q: It's a bunch of them, isn't it?

BY MR. BURDINE: I'm going to object, your Honor. I'm going to reimpose that objection again.

BY THE COURT: I'll sustain this time. That's far enough, counsel.

54. It is clear from a reading of the record that Higgins invited this cross-examination by the prosecutor by implying that the "system" was out to get him. Additionally, the prosecutor did not elicit this testimony from Higgins. Higgins offered it to show how the system was out to get him.

55. The right of a defendant or prosecutor in using juvenile adjudications in criminal proceedings is preserved to show bias or interest. Evans v. State, 422 So. 2d 737, 745 (Miss. 1982). The State had the right to demonstrate Higgins's bias toward the system and to demonstrate a motive for testifying for Manning. In this context, we cannot say that the trial court erred in allowing this testimony, which related directly to Higgins's bias or interest. Further, once the prosecutor attempted to delve deeper into the juvenile adjudications, the judge sustained the defense objection, and stopped the prosecutor, before any prejudice resulted. There is no reversible error in this assignment of error.

2. A prosecution witness, a chief of police, was allowed to expostulate on his opinion as to the credibility of a defense witness.

56. Manning asserts that Captain David Lindley with the Starkville Police Department should not have been allowed to testify that a defense witness, Carl Rambus, "personally does not have any credibility with me."

57. This claim for error is procedurally barred for failure to raise a contemporaneous objection. Hunter, supra. In addition, the testimony was admissible under Miss.R.Evid. 608(a), which provides:

(a)Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

58. This assignment of error is meritless.

III. THE SHERIFF SHOULD NOT HAVE BEEN ALLOWED TO GIVE A SPECULATIVE OPINION BASED ON INADEQUATE DATA REGARDING ULTIMATE ISSUES WITHIN THE JURY'S SOLE PREROGATIVE.

59. Manning argues that it was error for the trial court to allow the sheriff to testify to his theory of the case on redirect examination by the prosecutor. The scope of redirect examination, while largely in the discretion of the trial court, is limited to matters brought out during cross-examination. Evans v. State, 499 So. 2d 781, 783 (Miss. 1986) (citing Miss.Unif.Crim.R.Cir.Ct.P. 5.08). This Court will not disturb a trial court's ruling on matters pertaining to redirect unless there has been a clear abuse of discretion. Evans, 499 So. 2d at 782.

60. Upon a thorough examination of the record, we find that the trial court only allowed the prosecution to redirectly examine the sheriff on matters that had been brought out on cross-examination by the defense. The testimony on cross-examination by Williamson, defense counsel, was as follows:

Q: Sheriff, what evidence do you have to show that the victims were kidnapped from the Sigma Chi parking lot?

A: Only that they were out on the side of Pat Station Road where they had been murdered.

Q: Okay. What evidence at the Sigma Chi Fraternity house do you have to indicate that they were kidnapped?

A: None.

Q: Okay. Sheriff, where did the theory of a kidnapping arise?

A: I guess it--it was my theory. It was because they--when you attack a--a case that you're working on, you've got to have a theory; you've got to have what you think happened so you can get out and investigate the case, and that's where that theory came from.

Q: Okay. Was there any evidence in the MR2 to indicate a kidnapping?

A: No.

Q: Sheriff, was there any evidence at the scene of the crime, uh, Pat Station Road to indicate a kidnapping?

A: I really don't know how to answer that. I would think by the fact that they had been taken out there and murdered that they didn't go there voluntarily. So that was the reason for attacking it under the--a kidnapping method.

Q: Well, Sheriff, you've testified there was no evidence of a kidnapping at the Sigma Chi Fraternity house, no evidence of a kidnapping at--in the car, so again, what evidence was there at the scene to indicate a kidnapping?

A: You asked my theory; I--I was explaining my theory.

Q: No. I asked what evidence--

BY MR. ALLGOOD: If--If your Honor please, I'm going to object to counsel arguing with the witness.

BY THE COURT: Don't argue with the witness, counsel.

BY MR. WILLIAMSON: I apologize to the Court and to the witness.

Q: What evidence was there at the scene that you un--discovered to indicate a kidnapping?

A: The circumstances would be the only evidence that there is that the students were kidnapped, the fact that they were taken out there and murdered. I still do not think they went out there voluntarily for that to happen.

Q: Sheriff, I believe you've testified that the--you feel Jon and Tiffany walked up and interrupted a car burglary in process. Is--is that correct?

A: That is my theory; yes, sir.

Q: Okay. Sheriff, on the MR2, do you have any evidence to indicate how they were sitting in the vehicle?

A: None. Not--none other than my theory.

Q: Okay. And, Sheriff, in--in the description of your theory, you--you do make reference to that they interrupted a burglary--car burglary in process.

A: I think they interrupted a car burglary; I think that's how this whole thing got started. I think they walked out and caught a man burglarizing a car and it lead to this.

Q: Okay. So your--your theory is that--then is that he wasn't finished burglarizing the car?

A: That's correct.

Q: Okay. Sheriff, do you know if there was anything left in the car to take, John Wise's car?

A: I don't--I do not know. I don't know if there was or not.

Q: Sheriff, what--what evidence do you have to show that they walked up on a burglary in process?

A: My theory only, sir.

Q: Okay. So there is no evidence?

A: That's correct.

61. Then, on re-direct examination, the State explored the Sheriff's theory. Defense counsel objected and the objection was overruled.

Q: Now you were cross-examined about and you were asked a number of questions about your, quote, "theory," unquote, about how this--this event occurred.

A: Yes, sir.

Q: First of all, if you would, detail for these ladies and gentlemen of the jury what your theory is insofar as each step of the way on this particular case is concerned.

BY MR. BURDINE: And that--and that--and I--we're going to object to that, your Honor. I don't--know they've been talking about a theory here, but I'm objecting to him drawing conclusion and opinion without laying a proper predicate and foundation for it.

BY THE COURT: Because of the cross examination of the witness concerning his theory or theories, the door is now opened for that to be gone into on redirect examination to clear up anything the attorney might feel is left confused by the cross examination. If it had not been gone into in the cross examination, I would not have allowed it. You may proceed. The objection is overruled.

The defense opened the door for the prosecution to explore the sheriff's theories about the crime. There was no abuse of discretion by the trial court, and therefore, no reversible error.

 

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