                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 96-KA-00205-SCT
MARVIN LEWIS JONES
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                               02/17/89
TRIAL JUDGE:                                    HON. DARWIN M. MAPLES
COURT FROM WHICH APPEALED:                      JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         RICHARD C. CONANT
ATTORNEY FOR APPELLEE:                          OFFICE OF THE ATTORNEY GENERAL

                                                BY: JEFFREY KLINGFUSS
DISTRICT ATTORNEY:                              DALE HARKEY
NATURE OF THE CASE:                             CRIMINAL - FELONY
DISPOSITION:                                    REVERSED AND REMANDED - 11/26/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                 12/17/97




     BEFORE PRATHER, P.J., BANKS AND McRAE, JJ.


     BANKS, JUSTICE, FOR THE COURT:


¶1. This matter is before this Court following the appellant's conviction by a jury for distribution of a
controlled substance (cocaine) and sentence as an habitual offender to thirty years imprisonment
without parole. The appellant challenges the admission into evidence of prior, unrelated fourteen-
year-old heroin distribution convictions, the failure of the court to sua spontegive the jury a limiting
instruction regarding the prior convictions, the lower court's alleged personal bias against him, the
habitual offender sentencing, and ineffective assistance of counsel. Because we find that the
admission into evidence of the fourteen-year-old convictions was reversible error, we reverse and
remand.

                                                    I.

¶2. On December 14, 1988, a grand jury indicted the appellant, Marvin Lewis Jones (Jones) for
distribution of a controlled substance (cocaine) in cause number 88-10,694. The indictment alleged
six prior convictions from 1975 for distribution of heroin in support of the State's request that Jones
be sentenced as a habitual offender pursuant to Miss. Code Ann. § 99-19-81 and in support of the
request that he be doubly penalized under Miss. Code Ann. § 41-29-147. Jones pled not guilty to the
charges against him and elected to have a jury trial.

¶3. Trial was held on February 17, 1989. Officer James Kitchens testified that he, along with other
officers of the Jackson County Sheriff's Department and the Pascagoula Police Department, executed
a drug sting operation of the Machpelah Street area in Moss Point, Mississippi. Kitchens wore a wire
during the sting. The target of the sting operation was Tony's Tiptop Club on Machpelah Street.

¶4. Kitchens testified that he had previously been to the club approximately ten or twelve times.
When Kitchens drove up to the club at about 11:00 a.m. on October 05, "Marvin" walked up to the
truck and asked the undercover officer what he needed (referring to drugs). Kitchens requested a
"rock." "Marvin" told the officer to "just sit there" until he returned. In the interim, the owner of the
club, Tony, came to the truck, peered inside, and returned to the club. Then "Marvin" came back out,
sat inside the truck, and gave Kitchens a "rock" of crack cocaine wrapped in a napkin in exchange for
$100.

¶5. Immediately following the drug transaction, Kitchens met the other police officers at a nearby
hotel room where he described Tony and "Marvin." Prior to the trial, Kitchens identified Jones in a
photo lineup as the man called "Marvin," who sold him the "rock" for $100. In addition, Kitchens
identified Jones at trial.

¶6. The drug transaction was taped via a wire worn by Kitchens. The tape was admitted into
evidence and played for the jury.(1) Kitchens identified the voices on the tape as belonging to him, the
club owner (Tony), and Jones. However, on cross-examination, Kitchens admitted that the tape was
of "poor quality" and that the only way the jury knew that Jones was on the tape was because
Kitchens said so. Similarly, the trial judge noted the "poor quality" of the tape. Despite the
shortcomings of the tape, the officer emphasized that he knew Jones before the sting operation,
evidenced by the fact that he knew Jones' nickname was "Blackie."

¶7. The defense's first witness was Tony, the owner of Tony's Tiptop Club, who testified that he had
known Jones for a substantial length of time and that he had never witnessed Jones selling drugs at
his club. Tony also stated that he did not recall seeing Kitchens at his club on October 05, 1988.
After Tony's testimony, counsel for Jones informed the court that Jones was going to testify in his
own defense. Counsel argued that the State should not be allowed to introduce evidence of Jones'
fourteen-year-old heroin distribution convictions as they were too old, highly prejudicial, and not
probative. The State, on the other hand, argued that prior convictions that were beyond the ten-year
limitation were admissible if the court decided they had probative value. Emphasizing the type of
drug involved in the prior convictions (heroin) and the instant case (cocaine), the trial court
concluded that the probative value outweighed the prejudicial effect and, as such, ruled that he would
allow the State to question Jones about the fourteen-year-old priors, whether the defense opened the
door or not.

¶8. Subsequently, Jones testified and conceded that he frequently patronized Tony's Tiptop Club.
However, he disputed Kitchens' testimony that he sold Kitchens crack cocaine on October 05, 1988.
He further alleged that his voice was not depicted on the audiotape. He admitted that he met
Kitchens at the club in early October, but according to Jones, the circumstances of the meeting were
quite different from those alleged by the officer. Jones also denied being referred to as "Blackie." On
cross-examination, the prosecutor asked Jones about his lack of employment and then about the prior
convictions. In the State's closing argument, the prosecutor referred to Jones as a "six time convicted
heroin dealer."

¶9. Based upon the evidence presented, the jury found Jones guilty as charged in the indictment and
the trial court immediately sentenced him to thirty years imprisonment without parole. In a
subsequent hearing, the trial court found Jones to be a habitual offender, but declined to double his
sentence as allowed under the double penalty statute.

¶10. Following his conviction, Jones filed numerous pro se motions in the trial court as his trial
attorney did not file timely notice of appeal or any other post-trial motion on his behalf. We granted
Jones' writ of mandamus and directed the lower court to enter an order disposing of the multitude of
pro se motions. After some time, the circuit court granted Jones an out-of-time appeal, and he now
assigns the following as error.

                                                   II.

     THE TRIAL COURT ERRED IN OVERRULING JONES' OBJECTION TO THE
     ADMISSION INTO EVIDENCE OF PRIOR, UNRELATED CRIMES AT HIS TRIAL.

¶11. Jones first argues that the trial court committed reversible error in admitting into evidence his
fourteen-year-old prior felony convictions for distribution of heroin. The State concedes that the
admission of these priors was error, but nevertheless argues that the error was harmless in light of the
overwhelming evidence against Jones, emphasizing the eyewitness testimony of Officer Kitchens and
the tape that was played for the jury (the very tape that Officer Kitchens and the lower court
described as "poor quality").

¶12. The dispositive rule in this case is Miss. R. Evid. 609(b) which provides in pertinent part:

     Evidence of a conviction under this rule is not admissible if a period of more than ten years has
     elapsed . . . unless the court determines, in the interests of justice, that the probative value of
     the conviction supported by the specific facts and circumstances substantially outweighs its
     prejudicial effect. However, evidence of a conviction more than ten years old as calculated
     herein, is not admissible unless the proponent gives to the adverse party sufficient advance
     written notice of intent to use such evidence to provide the adverse party with a fair
     opportunity to contest the use of such evidence.

Miss. R. Evid. 609 (2) (emphasis added).

¶13. As Rule 609(b) plainly dictates, the first step an offering party must take in order to impeach a
witness with evidence of a prior conviction that is more than ten-years-old is to provide the opposing
party with advance, written notice of the intent to introduce such evidence. Next, the offering party
must meet a threshold burden of showing, prima facie, the probative value of the prior conviction.
McGee v. State, 569 So. 2d 1191, 1195 (Miss. 1990); Signer v. State, 536 So. 2d 10, 13 (Miss.
1988); McInnis v. State, 527 So. 2d 84, 88 (Miss. 1988); Johnson v. State, 525 So. 2d 809, 812
(Miss. 1988). In short, the offering party must show how the prior conviction "suggest[s that] the
witness [is] less than credible." McInnis, 527 So. 2d at 88.
¶14. After this threshold showing, the trial court is then required to conduct an on-the-record
weighing of the probative value of the proffered prior conviction versus the prejudicial effect of the
prior crime. McGee, 569 So. 2d at 1195 (citing Peterson v. State, 518 So. 2d 632, 636-37 (Miss.
1987)) (providing the five factors to be used by the trial court in determining if the prior conviction is
more probative or prejudicial). The purpose of this on-the-record balancing requirement is so that on
appeal "this Court can more easily ascertain whether or not the trial judge has abused his discretion in
granting or denying admissibility of prior convictions for impeachment purposes." McGee, 569 So.
2d at 1195 (quoting Johnson, 525 So. 2d at 812).

¶15. In cases in which lower courts fail to conduct the required balancing test, this Court has done
one of two things. In some cases, we performed the balancing test ourselves. See Peterson, 518 So.
2d at 637; Johnson, 525 So. 2d at 812. However in those cases where the accused's credibility was
central to his defense or where the evidence was hotly disputed, we took a different course and
remanded the case for retrial. See McGee, 569 So. 2d at 1197 (citingSigner, 536 So. 2d at 12-13);
Pugh v. State, 584 So. 2d 781, 785 (Miss. 1991).

¶16. Here, not one rule concerning the admission into evidence of convictions more than ten years
old was adhered to. The State did not provide Jones with advance, written notice of its intent to use
the fourteen-year-old convictions. Nor did the State carry its threshold burden of showing, prima
facie, the probative value of the prior convictions. Still further, the trial court failed to conduct an on-
the-record weighing of the probative value and prejudicial effect of the prior convictions in a case in
which Jones' credibility was central to his defense and where the account of the incident came down
to opposing stories from Jones and Kitchens. Clearly, Rule 609(b) was violated.

¶17. In Townsend v. State, 605 So. 2d 767 (Miss. 1992), we were faced with a similar situation
involving the admission into evidence of prior convictions. There, the appellant was convicted of
burglary. At his trial, the lower court admitted into evidence two prior burglary convictions that were
seven-years-old, ruling that the credibility of the appellant was a "prime element in the jury's
decision." Id. at 769. The appellant appealed the decision, and this Court ruled that the impeachment,
using the prior burglary convictions, should not have been allowed for the following reasons. First,
we noted that burglary was not necessarily a crime affecting one's veracity. Secondly, we noted that
the prior convictions were seven years old, a fact which greatly lessened their probative value. Also,
the prior crimes were identical to the crime charged, i.e., burglary. We therefore cautioned that prior
convictions must only be used to attack credibility and not to show "'a propensity on the part of the
defendant to have acted on the present occasion in conformity with the criminal character suggested
by the previous conviction.'" Id. at 770-71 (quoting McGee, 569 So. 2d at 1195); see also Pugh, 584
So. 2d at 785. We further explained that since the appellant was the only defense witness, his
credibility was crucial to the defense, and even though credibility was central to the jury's decision-
making, the low probative value of the seven-year-old convictions militated against their admission
into evidence. Townsend , 605 So. 2d at 771. There, we reversed and remanded, stating in a
footnote:

     Some members of the Court are of the view that the lower court erred but that the error was
     harmless under the overwhelming evidence of guilt. However, lower courts and prosecuting
     attorneys must not commit errors on the speculation that the Supreme Court will affirm on the
     ground of harmless error. Cases must be tried and evidence must be admitted according to the
     law.

Id. at 771 n.1.

¶18. Here, the State concedes error but nevertheless argues that the error was harmless in light of the
overwhelming evidence against Jones. This Court is unpersuaded by this argument. The tape, which
is emphasized by the State as an example of the overwhelming evidence against Jones, was described
by the State's key witness and the trial court as "poor quality," not to mention the fact that it is
missing from the record. Moreover, even though Officer Kitchens provided eyewitness testimony of
the drug transaction and identified Jones as the drug seller, Jones disputed every detail of the officer's
testimony.

¶19. Thus, Jones' credibility becomes a critical piece of evidence, thereby making the admission of the
prior convictions even more damaging and harmful if relied upon by the State and jury as substantive
evidence of Jones' guilt in the present matter, which is what appears to have been the State's purpose
because during closing argument the prosecutor referred to Jones as a "six time convicted heroin
dealer." Such reliance on prior convictions to show present guilt is improper and will not be
sanctioned. McLemore v. State, 669 So. 2d 19, 22 (Miss. 1996) (cautioning that prior crimes must
be used only to attack an accused's credibility as the risk is great that a jury may conclude the
accused committed the present crime because he had a prior criminal tendency).

¶20. It is, therefore, this Court's conclusion that Rule 609(b) was not adhered to and that the
admission of the fourteen-year-old heroin distribution convictions was manifestly prejudicial,
warranting reversal and remand.(3)

¶21. REVERSED AND REMANDED.

PRATHER AND SULLIVAN, P.JJ., AND McRAE, J., CONCUR. LEE, C.J., CONCURS IN
RESULT ONLY. PITTMAN, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN
OPINION JOINED BY McRAE, ROBERTS AND MILLS, JJ. SMITH, J., NOT
PARTICIPATING.


     PITTMAN, JUSTICE, SPECIALLY CONCURRING:

¶22. I concur in that the State conceded confessed error in that a 14-year old conviction was
admitted into evidence in violation of Miss. R. Evid. 609(b) and I would hold such error is not
harmless. Therefore, I concur in the result, but I do not join in the other language of the opinion.

McRAE, ROBERTS AND MILLS, JJ., JOIN THIS OPINION.




1. This exhibit has mysteriously disappeared from the record. For purposes of the instant appeal and
our resolution of this matter, the tape is irrelevant.

2. The 1989 version of Miss. R. Evid. 609(b) is the same as the 1997 version, except for an
amendment to the Comment, which is not relevant for purposes of the instant case. Thus, we cite to
the 1997 version.

3. Jones also argues that the lower court was personally biased against him, failed to give a limiting
instruction, that his sentence as a habitual offender was via an allegedly defective indictment, and that
counsel was ineffective. In light of our disposition of Jones' first assignment of error, we decline to
address these assignments of error.
