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Friday, June 27, 2008

Mississippi Burning: Court Of Appeals Of Mississippi Makes Bizarre "Harmless Error" Ruling In Re-Cross-Examination Case

The recent opinion of the Court of Appeals of Mississippi in Ronald "Rudy" Moore a/k/a Ronald Moore v. State of Mississippi, 2008 WL 2498240 (Miss.App. 2008), contains both an interesting discussion about the different Constitutional footings of cross-examination and re-cross-examination and what I conclude as an indefensible "harmless error" ruling.

In Moore, when Julius Heard returned home in his car after getting some food from Sonic, he was approached by an individual who identified himself as "Rudy."  Rudy told Heard that he needed a ride to his house in Presidential Hills because he had just had a fight with his girlfriend, but Heard refused to give him a ride. Heard then exited his vehicle, but Rudy brandished a forty-five-caliber pistol and demanded that Heard take him to Presidential Hills.  Heard complied and drove Rudy to Presidential Hills, whereupon Rudy demanded that Heard turn the car onto James Garfield Circle. After Heard again complied, Rudy shot him in the face, with a portion of Heard's jaw landing in his lap. Heard tried to escape, but Rudy shot him in the "rear." Rudy then straddled Heard's back and rummaged through Heard's pockets. He eventually shot Heard three more times in the head and ran away with five hundred dollars of Heard's money.

Miraculously, Heard survived and dialed 911 on his cell phone, leading to officer Kenny Bryant's arrival at the scene. Bryant testified that Heard repeated the name "Rudy" several times before the paramedics took Heard to the hospital.  Detective Ford Hayman later arrived at the scene of the crime and was approached by an anonymous person, who told him "that the person responsible for the shooting was Rudy."  Detective Hayman thereafter used the police database to determine that "Rudy" was likely Ronald Moore.  He thus created a photo lineup to show to Heard, who identified Moore as his assailant.

Ronald Moore was thus charged with aggravated assault and armed robbery, and the state presented against him: (1) Heard's testimony, (2) Heard's identifications of Moore as his assailant to the detectives, (3) the anonymous person's statement to Hayman, and (4) evidence that a fingerprint lifted from the passenger-side rear fender of Heard's car belonged to Ronald Moore.  After Moore was convicted, he appealed to the Court of Appeals of Mississippi.

The Court correctly noted that the anonymous person's statement to Hayman was hearsay, but deemed its admission harmless error.  What this meant was that the only evidence indicating anything beyond the fact that Moore was in Heard's car were Heard's testimony and his statements to the detectives; in other words, the state's case hinged upon Heard's credibility.

And at trial, defense counsel attacked Heard's credibility, presenting evidence that he was smoking marijuana on the day of the shooting and impeaching him through evidence of a prior grand larceny conviction.  During redirect examination, the prosecutor asked Heard about drug testing, and Heard responded that he had never failed a drug test or violated his probation.  After redirect, defense counsel sought to re-cross-examine and impeach Heard with evidence that his probation was revoked for illegal drug use, but the trial court prevented such re-cross-examination

On appeal, Moore claimed that the trial court erred by denying him his Constitutional right to cross-examine Heard.  The Court of Appeals disagreed, finding that Article 3, Section 26 of the Mississippi Constitution of 1890 guarantees criminal defendants the right to cross-examine witnesses against them, but that re-cross-examination is not allowable as a matter of right, but only a matter of trial court discretion.  The court thus found that it was merely reviewing the trial court's order for abuse of discretion, and, indeed, it did find that the trial court abused its discretion.

Nonetheless, the Court of Appeals found that this was also "harmless error" because:

     "Here, Moore was allowed an extensive opportunity to impeach Heard regarding his drug use and criminal history. The jury also heard evidence that Heard was smoking marijuana on the day of the shooting. The principle of harmless error also applies to Heard's false statements. Moore had already impeached Heard with his prior conviction. Thus, Moore was allowed to present evidence to the jury that Heard's testimony might not be completely reliable. The defense had the opportunity to extensively impeach Heard, and any further impeachment on either issue would merely be cumulative."

Really?  As noted, the state's entire case hinged on Heard's credibility.  Put yourself in the jury's shoes.  You hear that the state's key witness had a prior grand larceny conviction.  You hear that he was smoking marijuana on the day that he was shot.  Undoubtedly, both of these facts are going to cause you to doubt his testimony.  But would either of these facts cause you to doubt his testimony as much as actual evidence that he blatantly lied on the witness stand?  Or, at the very least, would you be able to say that such evidence would add nothing to the table?  The Court of Appeals of Mississippi answered the latter question in the negative, and I see no way to defend its decision.

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/06/re-cross-examin.html

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Comments

Welcome to the world of criminal defense. The ruling went the way it did becasue that way the conviction is affirmed, and the guy we assume to be the bad guy stays in prison. It's results-oriented jurisprudence, nothing more, nothing less.

Posted by: Greg JOnes | Jun 27, 2008 12:33:26 PM

There were errors in this trial. There are errors in all trials. But, this is what I took from the decision.
Strong circumstantial evidence in the case included that "Rudy" lived on James Garfield Circle, where the assault apparently took place, and "Rudy's" fingerprint was on the victim's car. These circumstances corroborated the victim's account of the matter so the jury were not just left with his word.
The statement about "Rudy" from the person at the scene was not admitted for its truth, but for the fact that it was said, so it was not hearsay. It was not admitted as substantive evidence of guilt. It came into evidence with a strong limiting instruction.
It appears, so far as impeachment was concerned, that defense counsel had already made the point that the victim abused drugs and was a liar. The point could not have been lost on the jury.
This leaves us with the question -- what would happen in a new trial without error? The anonymous "Rudy" statement which the jury were already told was not substantive evidence and could not be considered for its truth would be excluded -- but it already was considering the limiting instruction. The jury would be advised that the defendant was a drug abuser and a liar -- they already knew this. That's why the court was correct in deciding that the errors were harmless.

Posted by: other evidence | Jun 27, 2008 8:57:37 PM

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