Moss v. State
| Docket Number: | 2005-KA-02340-COA Linked Case(s): 2005-KA-02340-COA ; 2005-CT-02340-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-25-2007 Opinion Author: MYERS, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Aggravated assault & Rape - Admission of statements - M.R.E. 801(d)(1)(B) - M.R.E. 401- M.R.E. 402 - Prior convictions - M.R.E. 609(a)(1)(B) - Prosecutorial misconduct - Limiting instruction - M.R.E. 105 - M.R.E. 404(b) - Ineffective assistance of counsel - Weight of evidence Judge(s) Concurring: LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Dissenting Author : IRVING, J. Dissent Joined By : KING, C.J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 10-21-2005 Appealed from: Clarke County Circuit Court Judge: Robert Bailey Disposition: CONVICTED OF AGGRAVATED ASSAULT AND RAPE AND SENTENCED AS A HABITUAL OFFENDER TO SERVE TWO LIFE TERMS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF EARLY RELEASE, PROBATION OR PAROLE. District Attorney: Bilbo Mitchell Case Number: 2004-68 |
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| Party Name: | Attorney Name: | |||
| Appellant: | ROBERT LEE MOSS, JR. |
PHILLIP W. BROADHEAD |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Aggravated assault & Rape - Admission of statements - M.R.E. 801(d)(1)(B) - M.R.E. 401- M.R.E. 402 - Prior convictions - M.R.E. 609(a)(1)(B) - Prosecutorial misconduct - Limiting instruction - M.R.E. 105 - M.R.E. 404(b) - Ineffective assistance of counsel - Weight of evidence |
| Summary of the Facts: | Robert Moss, Jr. was convicted of aggravated assault and rape and sentenced as a habitual offender to serve two life terms of imprisonment. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Admissibility of statements Moss argues that the trial court erred in allowing three witnesses, the victim’s boyfriend, boss and cousin, to testify regarding their conversations with the victim because this testimony was inadmissible hearsay. M.R.E. 801(d)(1)(B) permits the introduction of a prior consistent statement if the declarant has testified at the trial and been subject to cross-examination, the testimony of the witness as to the prior statement was consistent with the declarant’s testimony as a witness, the prior statement was offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. At the time that the statements of which Moss complains were introduced during trial, the declarant had already testified that Moss raped her and her testimony was subject to cross-examination. After she testified, the State called her boyfriend, boss and cousin to testify. Each of these witnesses confirmed that the victim told them she was raped. Through the introduction of these prior consistent statements, the prosecution sought to demonstrate that the victim’s testimony at trial was consistent with the version of events she gave to her boyfriend, boss and cousin the day after the attack. Each of the prerequisites of Rule 801(d)(1)(B) were satisfied so as to remove the witnesses’ statements from the category of impermissible hearsay. Such a statement would ordinarily be very relevant evidence as defined in M.R.E. 401 and thus, the statement becomes admissible under M.R.E. 402. The trial judge properly allowed the State to elicit these statements of the witnesses in order to rebut Moss’ defense of consensual sex. Issue 2: Prior convictions Moss argues that the prosecutor improperly elicited evidence during his cross-examination of Moss regarding his prior convictions of aggravated assault and assaulting a police officer, then repeated Moss’ answers regarding his prior convictions during summation, thereby causing him severe reversible prejudice and that such evidence is prohibited by M.R.E. 609(a)(1)(B). His lawyer’s failure to object to the introduction of such evidence and failure to request a limiting instruction forms the basis of his claim of ineffective assistance of counsel. Rule 609(a)(1)(B) allows the introduction of prior convictions for the limited purpose of attacking the credibility of the witness. The rule requires that before evidence of a prior conviction is introduced for the purpose of attacking the credibility of a witness, the court is to determine that the probative value of admitting this evidence outweighs its prejudicial effect to the party. The trial transcript reveals that Moss, himself, brought to light his previous convictions for aggravated assault and assaulting a police officer. Consequently, at the time of Moss’ introduction of his prior convictions, the trial judge had no opportunity to perform an analysis to determine whether to admit the evidence of Moss’ prior convictions. Therefore, the trial judge did not abuse his discretion by allowing the State to question Moss about his prior conviction. Issue 3: Prosecutorial misconduct Moss argues that the court erred in allowing the prosecutor to use his testimony regarding his prior criminal convictions during closing argument. The standard used in reviewing closing arguments is whether the natural and probable effect of the prosecuting attorney’s improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice. After Moss testified regarding his prior convictions, the prosecution was entitled to mention the convictions during summation. Issue 4: Limiting instruction Moss argues that the trial court’s failure to sua sponte give the jury a limiting instruction on the use of his prior convictions in their deliberation of his guilt contributed to the warranting of a new trial based upon plain error. Under M.R.E. 105, a trial court is not obligated to sua sponte give a limiting instruction regarding the admittance of a prior conviction under M.R.E. 404(b). Because the burden to request a limiting instruction falls upon defense counsel in the admittance of 404(b) evidence, the burden falls upon defense counsel to request a limiting instruction in the context of the admittance of prior convictions through impeachment under M.R.E. 609. Issue 5: Ineffective assistance of counsel Moss argues that his counsel’s failure to object to the introduction of his prior convictions and failure to request a limiting instruction regarding the jury’s use of this evidence amounts to ineffective assistance. There was no error in Moss’ attorney’s decision not to object. Decisions to make particular objections fall within the purview of the attorney’s trial strategy and cannot give rise to an ineffective assistance of counsel claim. In addition, a lawyer’s failure to request such a limiting instruction as a tactical decision does not amount to ineffective assistance. Issue 6: Weight of evidence Moss argues that the verdict was contrary to the weight of the evidence before the jury to convict him of aggravated assault and rape. The victim testified that Moss raped her, during which time he held a knife at her throat, threatening to kill her. Her boyfriend, boss and cousin testified regarding their observation of the victim’s physical cuts the day after she alleged she was attacked by Moss. Photographs were introduced depicting the scene where the victim alleged the attack occurred, showing blood stains located on a pillow in her home and her dress. In viewing the evidence in the light most favorable to the verdict, we find that a reasonable juror could have found Moss guilty of aggravated assault and rape based on the evidence presented. |
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