Esco v. State
| Docket Number: | 2006-KA-01787-COA Linked Case(s): 2006-KA-01787-COA ; 2006-CT-01787-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-30-2008 Opinion Author: Roberts, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Aggravated assault, Armed robbery, Conspiracy to commit aggravated assault, Conspiracy to commit armed robbery, Possession of a firearm by a prior convicted felon, & Felony evasion - Admission of guilty plea colloquy - M.R.E. 105 - Prior conviction - Cross-examination - Redirect examination - Summary of phone calls - Conferring with jury Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Chandler, Griffis, Barnes, Ishee, and Carlton, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 08-14-2006 Appealed from: MADISON COUNTY CIRCUIT COURT Judge: William E. Chapman, III Disposition: CONVICTED OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCED TO LIFE IMPRISONMENT; COUNT II, ARMED ROBBERY, AND SENTENCED TO LIFE IMPRISONMENT; COUNT III, CONSPIRACY TO COMMIT AGGRAVATED ASSAULT, AND SENTENCED TO LIFE IMPRISONMENT; COUNT IV, CONSPIRACY TO COMMIT ARMED ROBBERY, AND SENTENCED TO LIFE IMPRISONMENT; COUNT V, POSSESSION OF A FIREARM BY A PRIOR CONVICTED FELON, AND SENTENCED TO LIFE IMPRISONMENT; AND COUNT VI, FELONY EVASION, AND SENTENCED TO LIFE IMPRISONMENT, WITH SENTENCES IN COUNTS I, II, III, IV, AND V TO RUN CONCURRENTLY, AND SENTENCE IN COUNT VI TO RUN CONSECUTIVELY TO COUNTS I, II, III, IV, AND V, ALL AS A HABITUAL OFFENDER, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, AND IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: David Byrd Clark Case Number: 2005-0522 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | FERLANDO ESCO |
RANDALL HARRIS,
JULIE ANN EPPS |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER |
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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, Armed robbery, Conspiracy to commit aggravated assault, Conspiracy to commit armed robbery, Possession of a firearm by a prior convicted felon, & Felony evasion - Admission of guilty plea colloquy - M.R.E. 105 - Prior conviction - Cross-examination - Redirect examination - Summary of phone calls - Conferring with jury |
| Summary of the Facts: | Ferlando Esco was convicted of aggravated assault, armed robbery, conspiracy to commit aggravated assault, conspiracy to commit armed robbery, possession of a firearm by a prior convicted felon, and felony evasion. The circuit court sentenced Esco as a habitual offender to five concurrent life sentences and one consecutive life sentence. Esco appeals. |
| Summary of Opinion Analysis: | Issue 1: Admission of guilty plea colloquy Esco argues that the circuit court committed reversible error when it allowed the prosecution to introduce his co-defendant’s entire guilty plea colloquy on redirect examination. Counsel for Esco did not object to the admissibility of Johnson’s guilty plea colloquy based on hearsay. Accordingly, it is unnecessary to analyze this issue as it pertains to whether the guilty plea was inadmissible hearsay as Esco may not raise this issue for the first time on appeal. Instead, counsel for Esco objected to the introduction of Johnson’s guilty plea colloquy on the basis that it was improper bolstering, cumulative, and beyond the scope of cross-examination. During cross-examination, Esco’s attorney attempted to impeach the witness with his guilty plea colloquy to show that he omitted certain facts during his guilty plea, yet testified to those facts during Esco’s trial. Therefore, introduction of the guilty plea colloquy was admissible to rehabilitate the witness’s testimony in that it tended to demonstrate that the circuit court did not focus on those facts during his guilty plea. Esco also argues that the circuit court committed reversible error when it did not sua sponte instruct the jury that it could not consider the guilty plea colloquy as substantive. M.R.E. 105 places the burden of requesting a limiting instruction upon counsel. This issue is procedurally barred for failure to request a limiting instruction at trial. Issue 2: Prior conviction The prosecution used Esco’s 1991 conviction for strong-arm robbery as proof of Esco’s status as a prior convicted felon to prove Esco was guilty of possession of a firearm by a prior convicted felon. Esco argues the circuit court committed reversible error in allowing use of the conviction. The prosecution was obligated to prove its case during its case-in-chief. Had the prosecution sat back, failed to prove that Esco was a prior convicted felon, and neglected to offer any proof of Esco’s status as a prior convicted felon, Esco could have successfully moved for a directed verdict after the prosecution ceased its case-in-chief. Esco also argues the circuit court committed reversible error when it did not sua sponte give a limiting instruction regarding the prosecution’s use of Esco’s conviction for strong-arm robbery. Esco is procedurally barred from raising this issue for the first time on appeal. Issue 3: Cross-examination Esco argues that the circuit court committed reversible error when it allowed the prosecution to ask him whether four law enforcement officers lied. It is clear that Esco’s theory of the case was that the law enforcement officers and the prosecution formed a conspiracy effort to connect him to the events. Esco unequivocally connected law enforcement in general with a desire to implicate him in the events. Additionally, Esco clearly testified that each and every officer had a general pre-existing bias toward him. The right of confrontation and cross-examination extends to and includes the right to fully cross-examine the witness on every material point relating to the issue to be determined that would have bearing on the credibility of the witness and the weight and worth of his testimony. The prosecution was entitled to rebut Esco’s theory of the case. The natural effect of that rebuttal was not to create unjust prejudice against Esco, and it did not result in a decision influenced by prejudice. Issue 4: Redirect In its rebuttal case, the prosecution called four law enforcement officers. The prosecution asked three of those officers whether they testified truthfully during the prosecution’s case-in-chief. Esco claims this was improper redirect. He is procedurally barred from raising this issue for the first time on appeal. Issue 5: Summary of phone calls Esco argues that the circuit court erred in allowing the introduction of a summary of phone calls from Esco’s cell phone, because the list was inadmissible hearsay that did not fall under any exception to the hearsay rule. However, Esco did not object on the basis that the list was hearsay at trial, and he may not do so for the first time on appeal. Esco’s objection at trial seems to have been that he could not verify that the summary was accurate. However, the record indicates that the prosecution supplemented its discovery responses prior to the trial, and there is no indication that the prosecution did not divulge prior to trial that it would present evidence from Esco’s cell phone. Accordingly, Esco’s attorney could have reviewed the cell phone’s call log at any time prior to trial and cross-examined the officer about any discrepancies. Issue 6: Conferring with jury After the jury found Esco guilty on all counts, the circuit judge recessed to visit with the jury. When the recess was over, the circuit judge sentenced Esco. Esco argues the circuit judge erred by conferring with the jury outside of his presence. Esco was sentenced as a habitual offender pursuant to section 99-19-83. Accordingly, the circuit judge had no discretion in sentencing Esco, as section 99-19-83 mandated that the circuit judge sentence Esco to life imprisonment for each conviction. |
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