Bailey v. State
| Docket Number: | 2004-KA-00640-COA Linked Case(s): 2004-KA-00640-COA ; 2004-CT-00640-SCT |
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| Court of Appeals: |
Opinion Date: 06-27-2006 Opinion Author: Roberts, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Murder - Hearsay - Telephone records - Expert testimony - M.R.E. 702 - M.R.E. 701 - Testimony about grand jury - Closing argument - M.R.A.P. 28(a)(6) - Prosecutorial misconduct - Discovery violation - URCCC 9.04(A)(1) - Documentary evidence - Opinion evidence - Other crimes’ evidence - M.R.E. 404(b) - Victim’s blood - Suppression of evidence Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Irving, Chandler, Griffis, Barnes and Ishee, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-06-2003 Appealed from: Hinds County Circuit Court Judge: Winston Kidd Disposition: Conviction of murder and sentence of life in prison in the custody of the Mississippi Department of Corrections Case Number: 01-0-347 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Michael Tyrone Bailey a/k/a Micheal Tyrone Davis |
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| Appellee: | State of Mississippi |
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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: | Murder - Hearsay - Telephone records - Expert testimony - M.R.E. 702 - M.R.E. 701 - Testimony about grand jury - Closing argument - M.R.A.P. 28(a)(6) - Prosecutorial misconduct - Discovery violation - URCCC 9.04(A)(1) - Documentary evidence - Opinion evidence - Other crimes’ evidence - M.R.E. 404(b) - Victim’s blood - Suppression of evidence |
| Summary of the Facts: | Michael Bailey was found guilty of murder and sentenced to life imprisonment. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Hearsay Bailey argues that the court erred when it allowed the prosecution to elicit improper hearsay testimony during the testimony of a witness who said a co-worker told her that the man she recognized as “Grease Man” was Michael Bailey. Although the trial judge erred when he allowed the hearsay testimony, that particular portion of the witness’s testimony was not prejudicial to Bailey because the witness previously testified that she recognized Bailey as the man that appeared at the gas station on the night the victim was murdered. Thus, the error is harmless at best. Bailey also argues that the testimony of this witness violated his right to confront witnesses against him. Testimonial hearsay must be exposed to confrontation by way of cross-examination prior to reaching admissible status, while non-testimonial hearsay does not trigger the need for confrontation to be admissible. Examples of testimonial evidence include prior testimony at a preliminary hearing, before a grand jury, or at a former trial and prior testimony during police interrogations. Here, the co-worker’s comments to the witness were not testimonial. They took place between two co-workers at a time when Bailey was not a suspect to the murder. Issue 2: Telephone records Bailey argues that the prosecution elicited improper hearsay testimony during a detective’s testimony in that the detective testified regarding telephone calls to which he was not a party. He also argues that the records were unauthenticated. Bailey did not object to the use of the phone records based on their unauthenticated status. Accordingly, the issue is waived for lack of a contemporaneous objection. With regard to his hearsay argument, he has failed to show that he suffered any prejudice. Issue 3: Expert testimony Bailey argues that the detective lacked the necessary expertise to testify as to the results of the DNA analysis performed on Bailey’s clothing and that his testimony was a violation of M.R.E. 702. Undoubtedly, DNA comparison testing requires specialized knowledge, skill, experience, training and education. Because the prosecution did not submit or qualify the detective as an expert witness, he should not have been permitted to testify as to the results of the DNA comparison performed on Bailey’s clothing. However, the error is harmless because the prosecution called an expert witness who performed the DNA comparison on Bailey’s clothing. Bailey also argues that the court erred in allowing the detective to answer a question about whether two people can murder the same person. However, the question was properly answered under M.R.E. 701. It does not take an expert to conclude that it is possible for two people to kill one person. Issue 4: Testimony about grand jury Bailey argues that the court erred in allowing the detective to testify about why he took the case to the Hinds County grand jury. The focus of the detective’s testimony was not the fact that Bailey was indicted and thus, he must be guilty. In effect, the prosecutor asked the detective why he felt Bailey was a likely suspect. Thus, there is no reversible error. Issue 5: Hearsay Bailey argues that portions of the detective’s testimony were inadmissible hearsay. With regard to a number of the instances, the detective did not offer anyone else’s statement when he testified as to the results of his investigation, so these were not hearsay violations. He also argues that it was hearsay for the detective to testify about statements made by Bailey’s niece concerning Bailey’s clothing. However, there is no reversible error based on clothing that did not prejudice Bailey in any way. With regard to his remaining complaint, the question of which Bailey complains did not ask for some other person’s statement and the response did not rely on another’s statement. Issue 6: Closing argument Bailey argues that the prosecution committed reversible misconduct during closing arguments, because the prosecution referred to hearsay testimony that was not in evidence, engaged in personal attacks against defense counsel, disparaged defense counsel, disparaged defense counsel’s closing remarks, and suggested that defense counsel was not truthful. The record shows that the prosecution’s argument was in response to a significant portion of Bailey’s closing argument. No reversible error results where a prosecutor’s remarks are in response to defense counsel’s previous argument. With regard to his argument that the prosecution improperly suggested that his counsel was untruthful, Bailey does not point to any particular statement that serves as the basis of his allegations. Also, Bailey does not cite any authority for the alleged impropriety of a comment about hanging the jury. Pursuant to M.R.A.P. 28(a)(6), failure to cite authority in support of an allegation amounts to procedural bar of the issue. Issue 7: Prosecutorial misconduct Bailey argues that the court failed to recognize the reversible effect of cumulative errors that resulted because the prosecution improperly questioned one of the witnesses. With regard to one of the questions, the trial judge sustained Bailey’s objection and the prosecution did not repeat the question, though it was never found to be improper other than that it was a leading question. There is also no indication that Bailey suffered any prejudice as a result of the questions of which he complains. With regard to questions about a possible rape of the victim, the prosecution did not elicit questions regarding rape or the fact that the victim may have been forced to bathe. The questions were in direct response to Bailey’s attorney’s cross-examination. In addition, the questions were relevant. Bailey also argues that the court erred when it allowed the prosecution to ask two other witnesses regarding whether the victim was the victim of a sexual assault. However, Bailey suffered no prejudice because Dr. Hayne and the other witness testified that they saw no indication of sexual assault. Bailey also argues the prosecution improperly questioned Dr. Hayne regarding whether two weapons could be used to kill someone. Dr. Hayne’s testimony was relevant because he testified that he found injuries that indicated two weapons were used. Issue 8: Discovery violation Bailey argues that the court erred when it allowed the prosecution to call two witnesses, because the prosecution did not disclose the fact that they would be called as witnesses until the day of trial. Under URCCC 9.04(A)(1), the prosecution is obligated to disclose to a defendant’s attorney, names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial, together with a copy of the contents of any statement, written, recorded or otherwise preserved of each such witness and the substance of any oral statement made by any such witness. With regard to one witness, Bailey was obviously aware of her potential testimony in that his investigator attempted to contact her at least one day before she testified. What is more, the trial judge gave Bailey’s attorney an opportunity to interview the witness before she testified. With regard to the other witness, Bailey was aware that the prosecution intended to call her as a witness at least eight months prior to trial. Issue 9: Documentary evidence Bailey argues that he did not receive chain of custody documents regarding the samples used in DNA testing. However, the record shows that Bailey had some of those chain of custody documents. In addition, the judge allowed Bailey the time to review the documents. Issue 10: Opinion evidence Bailey argues that a witness gave improper opinion evidence when she testified regarding the nature of threats that Bailey made against the victim. Bailey did not object to the testimony on the basis that it was improper opinion evidence. Failure to object at trial operates as a procedural bar. Issue 11: Other crimes’ evidence Bailey argues that an officer should have been prohibited from testifying that he arrested Bailey because he suspected Bailey violated Jackson’s open container ordinance and that, during his attempt to arrest Bailey, Bailey resisted arrest. Where substantially necessary to present to the jury the complete story of the crime, evidence or testimony may be given under M.R.E. 404(b) even though it may reveal or suggest other crimes. Here, the officer’s testimony was necessary to present a complete story of how Bailey reappeared at a gas station on consecutive nights, and how Bailey ended up in custody where a detective seized his clothing for DNA testing. Issue 12: Victim’s blood Bailey argues that testimony that no one else on earth but the victim could have supplied the blood found on Bailey’s shirt violated M.R.E 702. The witness testified as an expert witness. The results of her DNA tests showed that the likelihood that the victim’s DNA would match someone else’s would be one in ten billion. There is no indication that this testimony violated M.R.E. 702. Issue 13: Suppression of evidence Bailey argues that the court should have sustained his motion to suppress all evidence that derived from his arrest, because his arrest was not based on probable cause. There is no doubt that the officer had probable cause to detain and arrest Bailey. The officer saw Bailey with a brown bag with what appeared to be a bottle inside and suspected that Bailey was violating Jackson’s open container ordinance. When the officer struggled with Bailey, a crack pipe fell out of Bailey’s mouth. Thus, the officer had probable cause to arrest Bailey for resisting arrest, assault of a police officer, and possession of paraphernalia. |
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