Smith v. State
| Docket Number: | 2007-CT-00059-SCT Linked Case(s): 2007-KA-00059-COA ; 2007-KA-00059-COA ; 2007-CT-00059-SCT ; 2007-CT-00059-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 11-05-2009 Opinion Author: Lamar, J. Holding: Court of Appeals reversed; Circuit Court reinstated and affirmed. |
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| Additional Case Information: |
Topic: Aggravated assault - Prior inconsistent statements - M.R.E. 804(b)(5) - M.R.E. 804(a)(3) - Statements of identification - M.R.E. 801(d)(1)(c) Judge(s) Concurring: Waller, C.J., Carlson, P.J., Dickinson, Randolph, Kitchens, Chandler and Pierce, JJ. Dissenting Author : Graves, P.J., without separate written opinion. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY Writ of Certiorari: yes Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 10-17-2006 Appealed from: TUNICA COUNTY CIRCUIT COURT Judge: Al Smith Disposition: Kenivel Smith was convicted of aggravated assault and sentenced to serve twenty years in the custody of the Mississippi Department of Corrections for the shooting of Andre Davis. On appeal, the Court of Appeals reversed the circuit court, finding that the introduction of Davis’s statements violated both the Confrontation Clause of the United States Constitution and the Mississippi Rules of Evidence. District Attorney: Laurence Y. Mellen Case Number: 2005-0159 |
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| Note: | This opinion reverses a previous judgment by the Court of Appeals. See the original COA judgment at: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO52043.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | KENIVEL SMITH |
GEORGE T. HOLMES |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL: 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 - Prior inconsistent statements - M.R.E. 804(b)(5) - M.R.E. 804(a)(3) - Statements of identification - M.R.E. 801(d)(1)(c) |
| Summary of the Facts: | Kenivel Smith was convicted of aggravated assault and sentenced to twenty years. During direct examination of the victim, the State introduced the victim’s written and recorded statements made to law enforcement shortly after the shooting, in which he had identified Smith as the shooter. The trial court allowed the statements as substantive evidence pursuant to M.R.E. 804(b)(5). On appeal, the Court of Appeals reversed the circuit court, finding that the introduction of the statements violated both the Confrontation Clause of the United States Constitution and the Mississippi Rules of Evidence. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | The question presented is whether the trial court erred in admitting the victim’s prior unsworn statements into evidence as substantive proof of Smith’s guilt. According to the Court of Appeals, Smith must have been provided with an opportunity to cross-examine the victim at the time the statements were given in order for the statements to be admissible. Because Smith had no such opportunity, the Court of Appeals found that admission of the statements violated Smith’s constitutional right to confront his accuser. However, the victim's appearance on the witness stand at trial provided Smith with the opportunity to confront and cross-examine him, which is all that is required by the Confrontation Clause. Smith’s Sixth Amendment right to confront his accuser, therefore, was not violated by the admission of the victim’s statements. With regard to the trial court's admission of the victim’s prior, unsworn, out-of-court statements to be used as substantive evidence of Smith’s guilt under Rule 804(b)(5), the victim’s prior statements to investigators were the only evidence which identified Smith as the victim’s assailant. Rule 804(b)(5) is a broad exception, allowing hearsay statements where the declarant is found to be unavailable as a witness. The court found the victim to be unavailable as a witness due to a lack of memory pursuant to Rule 804(a)(3), which provides that unavailability as a witness includes situations in which the declarant testifies to a lack of memory of the subject matter of the statement. The victim initially testified that he had given a written statement but could not remember what he had said in the statement. The State then presented the victim with his written statement to refresh his memory. Although he initially testified that his memory was not refreshed, he then testified that the statement was, in fact, his. He testified that the statement that Smith had shot him was based solely on information he had received from his nephew, not from what he had observed. It is clear that the victim never indicated a lack of memory as to what happened on the day of the shooting. To the contrary, he testified to a different version of events at trial than that which he had provided in his statements to law enforcement officials. The State sought to introduce these prior statements, not because the victim had no memory of the events, but because he had changed his story. The trial court erred in finding that the victim was unavailable as a witness due to memory loss. To allow the introduction of these prior inconsistent statements under Rule 804(b)(5) would allow the exception to swallow the rule. Regardless of whether the witness has been impeached, the Mississippi Rules of Evidence provide that such identification evidence is not hearsay and is admissible as substantive material. Indeed, M.R.E. 801(d)(1)(C) provides that a statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person. In his statements given during police investigation, the victim unequivocally identified Smith as the shooter. He gave his statements the day after he perceived the man who had shot him. These statements identifying the assailant would have been admissible as statements of identification pursuant to Rule 801(d)(1)(C). The portions of the statements which included more than a mere identification of the shooter should not have been admitted under Rule 801(d)(1)(C), as they were not statements of identification. However, the bulk of the information contained in the statements was cumulative to the victim’s testimony. Thus, admission was harmless. |
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