                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2011-CT-00834-SCT

JOEL BASKIN

v.

STATE OF MISSISSIPPI

                              ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                           04/18/2011
TRIAL JUDGE:                                HON. C. E. MORGAN, III
COURT FROM WHICH APPEALED:                  MONTGOMERY COUNTY CIRCUIT
                                            COURT
ATTORNEYS FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                            BY: HUNTER NOLAN AIKENS
                                                 GEORGE T. HOLMES
ATTORNEYS FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                            BY: LISA L. BLOUNT
                                                 SCOTT STUART
DISTRICT ATTORNEY:                          DOUG EVANS
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                THE JUDGMENT OF THE COURT OF
                                            APPEALS IS AFFIRMED IN PART AND
                                            REVERSED IN PART. THE JUDGMENT OF
                                            THE MONTGOMERY COUNTY CIRCUIT
                                            COURT IS REVERSED AND THE CASE IS
                                            REMANDED - 01/30/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Because this case turned entirely on whether the jury believed the testimony of the

defendant’s witnesses, the damage caused by any inappropriate evidence offered to impeach

the credibility of those witnesses was heightened. All agree that the trial judge clearly erred
by allowing the State to impeachment a key defense witness with a petty-larceny conviction.

We therefore must reverse and remand for a new trial.

                       FACTS AND PROCEDURAL HISTORY

¶2.    Two Winona, Mississippi, police officers obtained an arrest warrant for Joel Baskin

on an aggravated-assault charge. The officers – Michael Gross and Tommy Bibbs – arrested

Baskin, searched him, and – according to their trial testimony – found cocaine, which led to

an indictment for possession of cocaine.

¶3.    Prior to trial, defense counsel moved to suppress the results of that search “to the

extent that it was done without sufficient probable cause.” The trial court held a suppression

hearing. The State presented Baskin’s arrest warrant without objection and called Officer

Gross to testify as to the circumstances surrounding the search. During the State’s direct

examination, Officer Gross testified that he had obtained and executed the arrest warrant, had

conducted a search incident to arrest, and had located the cocaine in Baskin’s pocket. On

cross-examination, Officer Gross explained that he had completed an affidavit supporting

issuance of the arrest warrant based on an ongoing investigation.

¶4.    Neither the State nor defense counsel asked Officer Gross to explain the facts in that

affidavit or any supporting probable cause for Baskin’s arrest. The affidavit was never

presented to the court, and the warrant itself is devoid of any reference to the factual basis

for its issuance. At the end of the suppression hearing, defense counsel declined to make an

argument, and the trial judge ruled that the results of Baskin’s search would be admitted.

¶5.    The case proceeded to trial. Both arresting officers testified that, when they searched

Baskin, they discovered what was later determined to be crack cocaine. Defense counsel


                                              2
called Darskeika Wallace and Michael Forrest, who testified that they were present at the

time of the arrest, and that the arresting officers had found nothing in Baskin’s pocket when

they had searched his person.

¶6.    Prior to calling defense witnesses, defense counsel moved to exclude prior convictions

that the State intended to use as impeachment evidence. The trial judge permitted the State

to use Wallace’s misdemeanor petty-larceny and embezzlement convictions. During cross-

examination, the State asked Wallace if she had ever been convicted of embezzlement and

petty larceny. Defense counsel objected, stating “that’s improper the way he posed the

question. It’s a misdemeanor conviction.” The State rephrased its question to say “you have

been convicted of misdemeanor embezzlement and petty larceny, which is also a

misdemeanor; is that correct?” Wallace answered yes without further objection from defense

counsel.

¶7.    The jury convicted Baskin of possession of cocaine. The trial court sentenced Baskin

to life in prison without the possibility of parole as a habitual offender. Baskin appealed, and

the case was assigned to the Mississippi Court of Appeals.

¶8.    Baskin argued to the Court of Appeals that the trial court had erred by failing to

suppress the results of Baskin’s search executed pursuant to an arrest warrant issued without

a finding of probable cause. Baskin also argued that the trial court had erred by failing to

exclude Wallace’s petty-larceny conviction pursuant to Mississippi Rule of Evidence 609.

The Court of Appeals found both issues procedurally barred because Baskin had failed to

challenge the sufficiency of his arrest warrant during the suppression hearing, and because




                                               3
his counsel had failed to lodge a contemporaneous objection to the State’s use of Wallace’s

petty-larceny conviction.1 Baskin filed his petition for a writ of certiorari, which we granted.

                                            ANALYSIS

       The Court of Appeals correctly found that Baskin was procedurally
       barred from claiming the arrest warrant was issued without probable
       cause.

       Procedural Bar

¶9.    The Court of Appeals determined that, while Baskin did challenge whether the police

officers had probable cause to execute a search,2 he “did not challenge the validity of the

arrest warrant at trial . . . ,” 3 and that the issue was therefore procedurally barred on appeal.4

We agree.

¶10.   Although Baskin argues that it is apparent from the suppression-hearing transcript that

defense counsel was challenging the arrest warrant’s validity, we find no statement or

argument in that transcript that supports his argument. In the alternative, Baskin suggests

that, even if trial counsel failed to attack the arrest warrant’s validity, the Court of Appeals

should have addressed the issue as plain error under this Court’s opinion in Conerly v. State 5

and remanded the case to the trial court for a hearing to determine whether probable cause

existed for the warrant. We disagree with both arguments.


       1
        Baskin v. State, No. 2011-KA-00834-COA, 2013 WL 500762,* *2, 3 (Miss. Ct. App. Feb.
12, 2013).
       2
           Id.
       3
           Id. at *2.
       4
           Id.
       5
           Conerly v. State, 760 So. 2d 737 (Miss. 2000).

                                                  4
¶11.     Generally, we do not address issues raised for the first time on appeal.6 Prior to trial,

defense counsel stated that “at this time, the defendant moves the Court to exclude the search

of my client in this case to the extent that it was done without sufficient probable cause.”

Shortly thereafter, defense counsel allowed the State to introduce the warrant into evidence

without objection – and without any supporting factual information – for purposes of the

suppression hearing.

¶12.     Defense counsel never raised the issue of, nor did he ask any questions about, the

supporting probable cause for the arrest warrant.

¶13.     And when given an opportunity to make an argument in support of suppressing the

cocaine, defense counsel declined to do so, stating instead that he would “allow the court to

grant a decision based on what’s been presented.” Accordingly, this issue was not raised

before the trial court, and we decline to address it on appeal.

         Plain Error

¶14.     Baskin argues that this Court has overlooked procedural bars where it finds plain

error, and that, according to our opinion in Conerly, the validity of an arrest warrant

qualifies as plain error.7 But, unlike Conerly, we find no plain error in the record before us

today.




         6
       Colburn v. State, 431 So. 2d 1111, 1114 (Miss. 1983) (citing Stringer v. State, 279 So. 2d
156 (Miss. 1973)).
         7
             Conerly, 760 So. 2d at 740.

                                                 5
¶15.     In Conerly, the defendant – for the first time in his reply brief8 – challenged the

probable cause supporting his burglary arrest warrant,9 arguing that the warrant was issued

based solely upon an affidavit which contained only uncorroborated rumors.10 We evaluated

that affidavit – which the appellate record contained – and concluded that, standing alone,

it was insufficient to establish probable cause.11

¶16.     Because the Conerly record contained information undermining probable cause for

Conerly’s arrest warrant, we addressed the issue as plain error 12 and remanded it so that the

trial judge could consider the issue.13

¶17.     The key to our plain-error analysis in Conerly was that the appellate record included

evidence that supported the claim of error. Here, the record is completely devoid of evidence

that calls into question the validity of that warrant.

¶18.     Because this issue is procedurally barred; and because we are unable to find any

reasonable basis upon which to conclude that Baskin’s arrest warrant lacked probable cause,

we decline to find plain error, and we affirm the judgment of the Court of Appeals as to this

issue.

         The Court of Appeals erroneously concluded that Baskin’s counsel did not
         raise the issue of the inappropriate impeachment evidence.


         8
             Id. at 740.
         9
             Id. at 739, 740.
         10
              Id.
         11
              Id. at 740, 741.
         12
              Id.
         13
              Id. at 741.

                                               6
¶19.     Next, Baskin argues that the trial court erred by allowing the State to impeach defense

witness Darskeika Wallace with a prior petty-larceny conviction, and that the Court of

Appeals erred because, even though it found the trial court in error, it held the issue was

procedurally barred because his counsel had failed to raise a contemporaneous objection to

the conviction.14

¶20.     In support of his argument, Baskin points out that his counsel did raise the issue at

trial by a motion that his counsel made and argued following the State’s case-in-chief. We

agree.

¶21.     Following the State’s case-in-chief, defense counsel moved to exclude prior

convictions which it anticipated the State would use to impeach the defense witnesses. After

hearing argument from the State and the defense as to whether Mississippi Rule of Evidence

609 would allow use of the relevant convictions, the trial judge ruled that the State could use

Wallace’s petty-larceny and misdemeanor-embezzlement convictions as impeachment

evidence. The Court of Appeals simply overlooked this motion in finding this issue waived

on appeal.

¶22.     The Court of Appeals correctly concluded that Wallace’s petty-larceny conviction was

inadmissible as impeachment evidence under Mississippi Rule of Evidence 609, which states

in its relevant part:

         General Rule. For the purpose of attacking the character for truthfulness of
         a witness,

         (1) evidence that (A) a nonparty witness has been convicted of a crime shall
         be admitted subject to Rule 403, if the crime was punishable by death or

         14
              Baskin, 2013 WL 500762, at *4.

                                                7
       imprisonment in excess of one year under the law under which the witness was
       convicted, and (B) a party has been convicted of such a crime shall be admitted
       if the court determines that the probative value of admitting this evidence
       outweighs its prejudicial effect to the party; and

       (2) evidence that any witness has been convicted of a crime shall be admitted
       if it involved dishonesty or false statement, regardless of punishment.15

¶23.   Neither petty larceny,16 nor misdemeanor embezzlement17 is punishable by death or

imprisonment in excess of one year. Accordingly, if either of Wallace’s convictions could

be admitted for impeachment purposes, it must fall within Rule 609(a)(2).

¶24.   The comment to Rule 609 states that:

       The phrase “dishonesty or false statement” in 609(a)(2) means crimes such as
       perjury or subornation of perjury, false statement, fraud, forgery,
       embezzlement, false pretense or other offense in the nature of crimen falsi, the
       commission of which involves some element of deceit, untruthfulness, or
       falsification bearing on the witness’ propensity to testify truthfully. Such
       convictions are peculiarly probative of credibility and are always to be
       admitted, not subject to the discretionary balancing by the judge.18

As the comment reflects, Rule 609(a)(2) serves to admit those prior convictions which are

most probative of the witnesses credibility by requiring that the crime contain an element of

falsehood.

¶25.   This Court consistently has held that Rule 609(a)(2) does not allow the use of theft

crimes – such as Wallace’s petty-larceny conviction – for impeachment purposes.19 Such


       15
            Miss. R. Evid. 609(a).
       16
            Miss. Code Ann. § 97-17-43(1) (Rev. 2006).
       17
            Miss. Code Ann. § 97-23-19 (Rev. 2006).
       18
            Miss. R. Evid. 609 cmt.
       19
        Adams v. State, 772 So. 2d 1010, 1022 (Miss. 2000); Blackman v. State, 659 So. 2d 583,
585 (Miss. 1995); Hopkins v. State, 639 So. 2d 1247, 1249-50 (Miss. 1993); Townsend v. State, 605

                                                8
crimes do not satisfy the purposes of the rule, and the trial judge clearly erred by allowing

the State to impeach Wallace with her petty-larceny conviction.20 Despite this Court’s clear

and substantial precedent, the prosecutor argued to the trial judge: “As to petty larceny,

again, I believe that that is – pretty clearly falls under criminal falsehood.”

¶26.   In the past, when trial judges have wrongfully admitted impeachment evidence under

Rule 609, we have reversed and remanded for a new trial.21 Here, we must reach the same

result. The State’s case rested on the credibility of witnesses. Wallace testified that she was

an eyewitness to the events, and that the officers did not retrieve anything from Baskin’s

pocket. If the jury believed her testimony, it would not have convicted Baskin.

¶27.   Said differently, the officer’s testimony served as the only evidence placing Baskin

in possession of the cocaine. The defense challenged that assertion with Wallace’s contrary

eyewitness testimony. Accordingly, in order to determine that Baskin possessed the cocaine,

the jury had to assign greater credibility to the officer’s testimony than it gave to Wallace.

This not only raises the probative value of Wallace’s testimony, but it also substantially

multiplies the prejudice resulting from the inappropriate attack on Wallace’s credibility,

which served as the primary hurdle to the State’s burden of proof.

¶28.   The dissent finds the trial judge’s error to be harmless because Wallace also had a

misdemeanor embezzlement conviction.             But the probative value of a misdemeanor

conviction for embezzlement – offered only to prove Wallace was not a truthful person – was


So. 2d 767, 770 (Miss. 1992).
       20
            Id. at 1250.
       21
            Blackman, 659 So. 2d at 585; Hopkins, 639 So. 2d at 1254; Townsend, 605 So. 2d at 771.

                                                 9
slight. Its impeachment value was greatly increased because it was coupled with a second

conviction that should not have been admitted.

¶29.    In Gilmore v. State, this Court found that the trial court erred by admitting the

defendant’s prior simple-battery conviction for impeachment purposes under Rule 609.22

There, this Court engaged in a harmless-error analysis, stating that “this court has narrowly

defined harmless error, stating that ‘[a]n error is harmless only when it is apparent on the face

of the record that a fair minded jury could have arrived at no verdict other than that of

guilty.’” 23 We explained that the “[r]elevant factors in determining whether error was

harmless or prejudicial include ‘whether the issue of innocence or guilt is close, the quantity

and character of the error, and the gravity of the crime charged.’” 24 We concluded that the

error could not be considered harmless “[b]ecause of the close he said, she said nature of the

evidence in this case. . . .” 25

¶30.    We are today faced with a similar “he said, she said” circumstance. The officer

testified that he found cocaine in Baskin’s pocket. Wallace testified that she observed the

search and arrest, and that the officer did not find anything in Baskin’s pocket. Also, the

weight of the evidence was substantially close in this case because the officer’s contradicted

testimony was the only evidence that established that Baskin had possessed the cocaine.




        22
             Gilmore v. State, 119 So. 3d 278, 290 (Miss. 2013).
        23
             Id. (quoting Forrest v. State, 335 So. 2d 900, 903 (Miss. 1976)).
        24
             Gilmore, 119 So. 3d at 290 (quoting Ross v. State, 954 So. 2d 968, 1018 (Miss. 2007)).
        25
             Gilmore, 119 So. 3d at 291.

                                                   10
Further, the nature of the error directly influenced the information provided to the jury

concerning Wallace’s credibility.

¶31.   The dissent opines that, once the State impeached Wallace with her misdemeanor

embezzlement conviction, any additional conviction would lack a cumulative prejudicial

effect on the jury’s perception of her credibility.         But logic dictates that one act of

                                                                    26
misdemeanor embezzlement – which is of questionable value                to show a propensity to lie

under oath – is far less probative of a witness’s credibility than a pattern of untruthful

behavior. We cannot say that it is apparent from the record that a fair-minded jury could

have reached no other result than guilty when the State relied on directly contradicted

testimony and the trial judge’s error directly affected that jury’s perception of the

contradicting witness’s credibility.

                                        CONCLUSION

¶32.   We agree with the Court of Appeals that Baskin is procedurally barred from raising

the issue of whether his arrest warrant was issued with probable cause. But because the trial

judge erred by allowing the State to impeach Baskin’s eyewitness with a misdemeanor petty-

larceny conviction, we affirm in part and reverse in part the judgment of the Court of Appeals

and reverse the judgment of the Montgomery County Circuit Court, remanding this case to

the trial court for a new trial.




       26
         We question the probative value of a misdemeanor-embezzlement conviction on a witness’s
truthfulness, particularly in light of this Court’s pronouncement that theft crimes fall outside the
scope of those permitted for impeachment purposes under Rule 609(a)(2). Adams, 772 So. 2d at
1022; Blackman, 659 So. 2d at 585; Hopkins, 639 So. 2d at 1249-50; Townsend v. State, 605 So.
2d at 770.

                                                11
¶33. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART
AND REVERSED IN PART. THE JUDGMENT OF THE MONTGOMERY
COUNTY CIRCUIT COURT IS REVERSED AND THE CASE IS REMANDED.

    WALLER, C.J., KITCHENS, CHANDLER AND KING, JJ., CONCUR.
COLEMAN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE
WRITTEN OPINION JOINED BY RANDOLPH, P.J., LAMAR AND PIERCE, JJ.

    COLEMAN, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:

¶34.   I agree with the majority that Baskin’s challenge to the sufficiency of his arrest

warrant is procedurally barred and that the trial court erred in admitting impeachment

evidence of a witness’s conviction for petty larceny. However, I believe the latter to be

harmless error. Accordingly, I would affirm the Court of Appeals and the trial court and,

respectfully, I dissent in part.

¶35.   “[F]or a case to be reversed on the admission or exclusion of evidence, it must result

in prejudice and harm or adversely affect a substantial right of a party. . . . Error is reversible

only where it is of such magnitude as to leave no doubt that the appellant was unduly

prejudiced.” Holladay v. Holladay, 776 So. 2d 662, 672 (Miss. 2000) (citations omitted).

¶36.   Without question, the trial court erred in admitting evidence of Wallace’s

misdemeanor conviction for petty larceny for impeachment purposes, but the trial court did

not err in allowing evidence of Wallace’s embezzlement conviction. See Miss. R. Evid. 609.

Mississippi Code Section 97-23-19 provides, in pertinent part, that “[i]f any person shall

embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or

secrete with intent to embezzle or convert to his own use . . .” goods or other things of value,

then he is guilty of embezzlement. Accordingly, evidence of a conviction for embezzlement



                                                12
is admissible for impeachment purposes under Mississippi Rule of Evidence 609(a)(2)

regardless of punishment, as it involves dishonesty or false statement.

¶37.   In all three cases cited by the majority – Blackman v. State, 659 So. 2d 583, 585

(Miss. 1995); Hopkins v. State, 639 So. 2d 1247, 1254 (Miss. 1993); Townsend v. State, 605

So. 2d 767, 771 (Miss. 1992) – the witnesses in question were impeached with crimes

inadmissible under Rule 609 only. Moreover, in Hopklins and Townsend, the defendants

were themselves the impeached witnesses. A finding of prejudice would come more easily

when the criminally accused is the target of the improper impeachment, but such is not the

case in the instant matter. Because Wallace was impeached with evidence of one

inadmissible crime and one admissible crime, I cannot reach the conclusion that the trial

court’s error was “of such magnitude as to leave no doubt that the appellant was unduly

prejudiced.” Holladay, 776 So. 2d at 672.

       RANDOLPH, P.J., LAMAR AND PIERCE, JJ., JOIN THIS OPINION.




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