E-Filed Document Dec 28 2015 17:29:25 2014-KA-00664-COA Pages: 8 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JAMES JOHNSON APPELLANT V. 2014-KA-00664-COA STATE OF MISSISSIPPI APPELLEE MOTION FOR REHEARING COMES NOW Appellee, State of Mississippi, through undersigned counsel, and respectfully moves the Court, pursuant to M.R.A.P. 40, to rehear the above-styled and numbered case, and as grounds therefor would show the following: I. THE COURT OVERLOOKED A CRITICAL PORTION OF THE RECORD WHICH SHOWS THAT THE TRIAL COURT DID IN FACT EXAMINE THE DETAILS CONTAINED IN THE POLICE REPORTS WHICH WERE PROPERLY ADMITTED UNDER M.R.E. 404(B). FURTHER, THE POLICE REPORTS DID NOT CONTAIN ADDITIONAL PRIOR BAD ACTS. RATHER, THE DETAILS CONSTITUTED THE PRIOR OFFENSES WHICH THE TRIAL COURT FOUND TO BE ADMISSIBLE. WHEREFORE, PREMISES CONSIDERED, and for the reasons more fully developed in the accompanying brief, the State respectfully moves this Court to rehear this case, and upon so doing, to affirm the trial court s judgement of conviction. FACTS AND PROCEDURAL HISTORY James L. Johnson was convicted of aggravated domestic violence for strangling his ex-wife, Volante Jones. Opinion at 1. Prior to trial, Johnson moved to exclude evidence of his prior acts of domestic violence. T. 56. At the motion hearing, the State announced its intention to introduce evidence of four prior acts of domestic violence Johnson had committed against the victim in the present case and three other victims, because pursuant to M.R.E. 404(b) the evidence would show
Johnson s intent, motive, plan, and lack of self-defense. T. 69-70. The State s argument at the hearing showed that the import of the evidence was not the fact that Johnson had previously committed acts of domestic violence. Rather, the details of the prior bad acts were relevant to show intent, motive, plan, and lack of self-defense. T. 73-74. The trial court agreed, ruling that the prior assaults were admissible for the 404(b) purposes argued by the State. T. 77-78. The trial court conducted a M.R.E. 403 balancing test and determined that the prejudicial aspect of the evidence at issue did not outweigh its probative value. T. 78. At trial, the State offered into evidence the police reports and court abstracts associated with the four prior assaults which the court had found admissible under M.R.E. 404(b). T. 115, 148; Exhibits S4-S10. Outside the presence of the jury, the trial court noted on the record that it had previously reviewed the reports in determining their admissibility, but had failed state as much on the record at the pretrial hearing. T. 130-131. The trial court further stated that it had ordered the State to redact a portion of one of the reports which the court found to be more prejudicial than probative. T. 131-132. THE HOLDING This Court found that Johnson s aggravated domestic violence conviction must be reversed because four police reports admitted into evidence contained additional prior bad acts which were not proffered by the State at the pretrial hearing. Opinion at 9, 18-19, 30. The Court found that although evidence of the four prior assaults proffered by the State at the pretrial hearing were properly admitted into evidence, the trial court never determined whether the additional bad acts contained in the police reports were admissible under M.R.E. 404(b), nor conducted the required M.R.E. 403 balancing test as to the additional bad acts. Opinion at 9, 30. It seems that the 2
Court was under the erroneous impression that the trial court had not looked at the police reports when it determined the admissibility of the prior bad acts. ARGUMENT The State respectfully submits the Court s opinion is incorrect for two reasons. First, it is clear from the record that the trial court considered the details contained in the offense reports in determining their admissibility under M.R.E. 404(b) and M.R.E. 403. T. 130-132. In fact, the trial court ordered the State to redact a portion of one of the court abstracts, finding that the fact that Jones had been ordered to attend anger management classes was more prejudicial than probative. T. 130-132. Second, the four offense reports admitted into evidence did not contain additional prior bad acts. Rather, the offense reports contained the details which constituted the prior assaults which the trial court deemed admissible under M.R.E. 404(b) and M.R.E. 403. At trial, the State introduced into evidence four offense reports and their corresponding abstracts/dispositions for each of the prior bad acts the trial court had ruled were admissible under 404(b). T. 115, 148. However, the trial court ordered the State to redact the a portion of one of the abstracts showing that Johnson had been ordered to attend anger management. T. 131-132. The trial court found that detail to be more prejudicial than probative. T. 131. In doing so, the trial court stated the following: I want to go back on the record here regarding the 404 hearing that I conducted earlier this morning. I wanted the record to reflect that in my review of the exhibits that were going to be introduced by the State prior to my ruling in the case, I discovered and had been made aware of that there was a -- on the -- when I was going over the facts of each of those cases I was aware that the -- on the latest incident in 2012 that the defendant, that charge was dropped because he was ordered to go to anger management. 3
T. 131. I did -- and I failed to put in part of my ruling, I did feel like that statement, the fact that he went to anger management, could be prejudicial against the defendant and more so than probative. I asked Mr. Nails in chambers if he wanted to object to that and if he did, if that particular incident, I wanted to make sure he was aware that was in there, and he was aware of it and he did ask that I exclude that part of it. And as a result of that, I failed to put that on the record that I did find that part more prejudicial than probative and, therefore, I ruled that that would not come in. Respectfully, this Court s Opinion clearly indicates that the Court inadvertently overlooked the trial court s on-the-record indication that it had examined Exhibits S-4 through S-10 prior to ruling on their admissibility. As indicated by the above-quoted portion of the transcript, the record made at the pretrial hearing did not reflect that the trial court examined the police reports at issue. However, the trial court subsequently made clear that it had examined the police reports in determining that they were admissible under M.R.E. 404(b) and M.R.E. 403. Because the Court s Opinion was predicated on its misapprehension of the aforementioned 1 facts contained in the record, the State respectfully submits that rehearing should be granted and the trial court s judgment should be affirmed. Although rehearing should be granted and the trial court s judgment affirmed based on the fact that the record shows that the trial court did examine the police 1 The Opinion states in pertinent part: The circuit court admitted the four offense reports without determining whether, under Rule 404(b) of the Mississippi Rules of Evidence, the State offered the additional offenses in the police reports for proper purposes..... Furthermore, the circuit court admitted the offense reports without scrutinizing whether, under Rule 403 of the Mississippi Rules of Evidence, the probative value of the additional allegations contained in the reports outweighed the prejudice to Johnson. Opinion at 4. 4
reports in their entirety in determining that the reports were admissible under M.R.E. 404(b) and M.R.E. 403, the State would also show that the police reports contained no additional offenses as suggested by the Court s Opinion. The Court s Opinion states that the offense reports admitted into evidence contained accusations that Johnson had committed various other serious crimes not included in the State s pretrial proffer. Opinion at 19. Respectfully, this is an inaccurate characterization of the offense reports and the State s proffer at the hearing on the defendant s motion in limine. The details contained in the offense reports do not constitute additional bad acts separate and apart from the four prior assaults the State offered under 404(b). Rather, the details in the offense reports are what constituted and supported the charges/prior bad acts. More importantly, the State argued at the hearing that the details of the prior bad acts showed Johnson s intent, motive, plan, and lack of selfdefense. For instance, the police report which corresponds to Johnson s prior aggravated assault against his first ex-wife included details such as Johnson went to his ex-wife s home, armed, kicked in her door, and hit her in the head with a gun and threatened to kill her. Exhibit 8. These details, while obviously prejudicial, are not additional prior bad acts. They are the acts which formed the basis of the prior aggravated assault. Again, the details of the prior assaults are what made the prior bad acts relevant under 404(b). That is to say that the details of the prior assaults, particularly that Johnson went to the location of the victims and provoked and assaulted the victims, are what showed the 404(b) purposes argued by the State, particularly that Johnson did not act in self-defense. If the State were limited in only presenting to the jury the fact that Johnson had previously been charged or convicted of domestic 5
assaults, that would tend to lead to the impermissible inference that he was acting in conformity therewith. It is only when the details of the prior assaults are relayed and compared to the details of the current assault that it becomes apparent that the prior bad acts tended to show Johnson s intent, motive, plan, and that he did not act in self-defense. See Green v. State, 89 So. 3d 543, 550 ( 17) (Miss. 2012) (finding that the overwhelming similarities between the prior bad acts and the present charge undeniably bring the testimony of these other victims within the purview of admissibility under Rule 404(b). ). In any event, the record clearly demonstrates that the trial court determined that police reports, except for the portion it ordered redacted, were admissible under M.R.E. 404(b) and 403. The Mississippi Supreme Court has set the standard of review for the admission of 404(b) evidence filtered through M.R.E. 403 as follows: The question on review is not whether this Court would have admitted the evidence, but whether the trial court abused its discretion in doing so, for the exclusion of prejudicial evidence is permissive; that is, if a trial court determines that the prejudicial effect of evidence substantially outweighs its probative value, it is not obligated to exclude the evidence, but may do so at its discretion. Stone v. State, 94 So.3d 1078, 1085 ( 20) (Miss. 2012) (quoting Ross v. State, 954 So.2d 968, 993 (Miss. 2007)). Because the trial court carefully examined the police reports at issue and found that they were admissible under 404(b) and 403 and did not abuse its discretion, its judgment should be affirmed. CONCLUSION For the foregoing reasons, the State respectfully submits that the Opinion in this case is incorrect and that this case should be reheard. Specifically, the Court s Opinion should be corrected to reflect that the trial court did, in fact, examine the contents of the offense reports in ruling on the 6
admissibility of the prior bad acts, as reflected by the transcript. Additionally, the Court should find that the supporting details in the offense reports do not constitute prior bad acts in addition to those deemed admissible by the trial court. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680 BY: /s/ La Donna Holland LA DONNA HOLLAND SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 101888 7
CERTIFICATE OF SERVICE I, LA DONNA C. HOLLAND, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This the 28th day of December, 2015. Honorable Jim S. Pounds Circuit Court Judge P.O. Box 386 Booneville, MS 38829 Honorable Trent Kelly District Attorney P.O. Box 370 Corinth, MS 38834 John R. White, Esq. 123 S. Fulton Street Iuka, MS 38852 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE NO. 602-359-3680 FAX NO. 601-576-2420 /s/ La Donna C. Holland LA DONNA C. HOLLAND SPECIAL ASSISTANT ATTORNEY GENERAL 8