Smith v. State


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Docket Number: 2007-KA-00059-COA
Linked Case(s): 2007-KA-00059-COA2007-CT-00059-SCT2007-CT-00059-SCT2007-CT-00059-SCT
Oral Argument: 04-08-2008
 

 

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Court of Appeals: Opinion Link
Opinion Date: 10-07-2008
Opinion Author: Roberts, J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Aggravated assault - Admission of victim’s prior statements - M.R.E. 801(c) - Right of confrontation - M.R.E. 804(a)(3) - M.R.E. 804(b)(5) - M.R.E. 803(5)
Judge(s) Concurring: Griffis, Barnes, Ishee, and Carlton, JJ.
Non Participating Judge(s): CHANDLER, J.
Dissenting Author : Irving, J., with separate written opinion.
Dissent Joined By : Lee and Myers, P.JJ.
Dissenting Author : King, C.J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 10-17-2006
Appealed from: TUNICA COUNTY CIRCUIT COURT
Judge: Al Smith
Disposition: CONVICTED OF AGGRAVATED ASSAULT AND SENTENCED TO TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE SENTENCE TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED
District Attorney: Laurence Y. Mellen
Case Number: 2005-0159

Note: The SCT reversed this Court of Appeals decision on 11/5/2009. See the SCT opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO59177.pdf

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: KENIVEL SMITH




GEORGE T. HOLMES



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS  

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    Topic: Aggravated assault - Admission of victim’s prior statements - M.R.E. 801(c) - Right of confrontation - M.R.E. 804(a)(3) - M.R.E. 804(b)(5) - M.R.E. 803(5)

    Summary of the Facts: Kenivel Smith was convicted of aggravated assault and sentenced to twenty years. He appeals.

    Summary of Opinion Analysis: Smith argues the circuit court committed reversible error when it allowed the prosecution to enter the victim’s prior statements into evidence as substantive proof of the truth contained therein. There can be no doubt that the victim’s pretrial statements qualify as hearsay under M.R.E. 801(c). The statements are testimonial - testimonial applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. Though the victim was not interrogated as if he was a suspect to his own shooting, he gave his statements in response to questions from authorities on the day after he was shot. Since they are testimonial, they would be admissible only if the victim was unavailable and the defendant had a prior opportunity to cross-examine him. M.R.E. 804(a)(3) provides that a witness is unavailable when a declarant testifies to a lack of memory of the subject matter of his statement. From an examination of the record it appears obvious that the victim became a favorable witness for Smith during cross-examination, if not during direct. The victim testified that Smith did not shoot him, that he lied in his statement to the police, and that the reason he identified Smith as the shooter was a result of hearsay from other witnesses to the shooting. Assuming that the circuit court may have been correct when it initially determined that the victim was “unavailable” due to memory loss under Rule 804(a)(3), the record affirmatively establishes no real loss of memory after the victim was cross-examined. Clearly, reversal is required in the interest of justice when the prosecution is permitted to introduce an out-of-court hearsay statement for the truth asserted therein as a result of its main witness’s professed loss of memory on direct examination; but, when cross-examined, the witness’s responses indicate that his loss of memory is entirely fabricated. It is undisputed that Smith did not have an opportunity to cross-examine the victim when he provided his statements. That Smith had an opportunity to cross-examine the victim at trial does not necessarily cure the constitutional confrontation problem. The circuit court allowed the prosecution to enter the victim’s prior statements pursuant to M.R.E. 804(b)(5). However, the rules of evidence are subordinate to the Sixth Amendment’s Confrontation Clause in a criminal case. Use of a prior inconsistent statement may only be used to impeach the credibility of a witness, not to prove the inherent truthfulness of that prior statement. Moreover, under M.R.E. 803(5), the written statement and the audiotaped statement should not have been received into evidence as was done by the circuit court. Not only does Davis’s testimony show that the contents of his out-of-court statement did not reflect his knowledge of that night correctly, it is apparent that his knowledge of the statement’s contents was never insufficient so as to preclude full and accurate testimony. Because Smith did not have an opportunity to be confronted with the witnesses against him, the circuit court erred when it found the written statement and audiotaped statement admissible as substantive evidence of Smith’s guilt. The victim’s prior out-of-court statements made to law enforcement officials were the prosecution’s sole evidence that Smith shot him. There simply was no other evidence identifying the shooter. In fact, the defense produced an alleged eyewitness that stated Smith was not the shooter. Further, the victim emphatically denied that Smith or any of his friends threatened him or any of his family. Thus, it is clear that Smith is entitled to a new trial.


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