                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2017-KA-00342-SCT

TOBIAS COLEMAN a/k/a TOBIAS R. COLEMAN
a/k/a TOBIAS RAYSHUN COLEMAN a/k/a TABIAS
COLEMAN a/k/a TABIAS RAYSHUN COLEMAN

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                       02/01/2017
TRIAL JUDGE:                            HON. JAMES T. KITCHENS, JR.
TRIAL COURT ATTORNEYS:                  STANLEY ALEXANDER
                                        GERALD ALEXANDER MUMFORD
                                        MARK TYLER JACKSON
                                        KATIE NICOLE MOULDS
                                        SCOTT E. ROGILLIO
COURT FROM WHICH APPEALED:              OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                 OFFICE OF THE STATE PUBLIC
                                        DEFENDER
                                        BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                        BY: SCOTT STUART
DISTRICT ATTORNEY:                      SCOTT WINSTON COLOM
NATURE OF THE CASE:                     CRIMINAL - FELONY
DISPOSITION:                            REVERSED AND REMANDED - 10/25/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      EN BANC.

      WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.   A jury found Tobias Coleman guilty of aggravated assault for shooting a man in the

head. The judge sentenced him to twenty years’ imprisonment, with five years suspended.

Coleman now appeals.
¶2.    We find that the trial court committed reversible error by admitting into evidence an

undated, grainy1 Facebook image taken of the defendant Tobias Coleman holding what

appears to be a handgun, years before the alleged crime, through the testimony of a witness

who denied ever having seen Coleman’s Facebook page or the photograph in question. We

reverse and remand for a new trial.

                       FACTS AND PROCEDURAL HISTORY

¶3.    On March 30, 2014, Zacharias Blanchard was shot in the head on the grounds of Club

Rock, located in Oktibbeha County just outside of Starkville, Mississippi. Blanchard was

taken to the Oktibbeha County Hospital by Joanna Burchfield, who had found him lying next

to her car and bleeding. Blanchard was transferred by helicopter to the University of

Mississippi Medical Center in Jackson for treatment by a neurosurgeon.

¶4.    Upon returning to Starkville, Blanchard identified Tobias Coleman as the man who

shot him.2 A grand jury charged Coleman with aggravated assault. Coleman was tried over

two days in January 2017.




       1
         “If photographs are ‘grainy,’ they are not clear because the many black and white
or coloured dots that make up the image can be seen.” Grainy, Cambridge Dictionary
(2018), https://dictionary.cambridge.org/us/dictionary/english/grainy (last visited September
27, 2018).
       2
          It is undisputed that Blanchard and Coleman had a history. Blanchard claimed at
trial that Coleman previously had sought to buy a car from him, and upon realizing he could
not afford it, he tried to buy the car with drugs. When Blanchard refused, Coleman tried to
shoot Blanchard, but his gun jammed. Coleman disputed Blanchard’s claim and stated that,
although he and Coleman at one point “had beef over a female,” they were no longer
enemies.

                                             2
¶5.    Blanchard testified that on the night of March 30, 2014, he arrived at Club Rock under

the influence of “Molly,” a drug described by Blanchard as a “sexual enhancer,” and alcohol.

Blanchard was accompanied by his friend Stephen Thomas Jr. Once inside Club Rock,

Blanchard’s cousin told him that Coleman and a group of friends had trapped him in the

bathroom. To take up for his cousin, Blanchard walked outside to confront Coleman.

Blanchard yelled at Coleman “from a distance,” but he could not recall what he said.

Blanchard also could not recall whether the area outside the club was well-lit or dark,

although he remembered that Coleman was wearing a black t-shirt and black jeans. Upon

seeing Coleman walking towards him, Blanchard testified that he did not protest or run

because “if it was [his] time, it was [his] time.” Blanchard stated that Coleman had “walked

upon [him]” from behind and shot him “from the back.” When asked why he would walk to

a dark area and turn his back on a person that Blanchard alleged had previously tried to kill

him, Blanchard responded that he “respect[ed] all and fear[ed] not.”

¶6.    Dr. Allen Butts was the State’s second witness. He examined Blanchard at the

Oktibbeha County Hospital. He determined that Blanchard had been injured by a gunshot

wound that had entered through his forehead, and he stabilized Blanchard prior to his transfer

to Jackson.

¶7.    The State’s last witness was Lieutenant Brett Watson, an investigator with the

Oktibbeha County Sheriff’s Office. He testified that between eight hundred to one thousand

people were at Club Rock on March 30, 2014. Five people, including Blanchard, had been

shot that night. Investigators found shell casings from three different calibers of guns—.380,



                                              3
.40, and .45 caliber. Lieutenant Watson testified that the different calibers of ammunition

meant there likely had been multiple shooters that night. Shell casings were found in several

different locations, but no DNA samples were recovered from the casings. The area where

Blanchard was shot contained both .40 and .45 caliber shell casings, which, according to

Lieutenant Watson, indicated that there had been more than one shooter. Lieutenant Watson

and other investigators conducted interviews with the shooting victims, but most patrons had

left the scene before law enforcement arrived. Investigators received names, nicknames, and

tips about potential shooters. None were ever confirmed.

¶8.    Lieutenant Watson interviewed Blanchard after he returned to Starkville from

Jackson. Blanchard positively identified Coleman as the shooter, having picked him out of

a photograph lineup.

¶9.    After the State rested, the defense called Marcus Johnson. Johnson testified that he

had been at Club Rock that night and had witnessed the shooting. According to Johnson,

Blanchard and Thomas were involved in an altercation with another man. Johnson testified

that both Blanchard and Thomas brandished their weapons and fired at a “dude with

dreads[.]” But Johnson claimed that the man was not Coleman.

¶10.   During cross-examination, the State asked Johnson how long he had known Coleman

and if he had ever seen Coleman with a gun. Johnson testified he had known Coleman

several years and had never seen him with a gun. The State then asked if Johnson had ever

seen Coleman’s Facebook page. Johnson answered that he had never seen Coleman’s

Facebook page because he had many “Facebook friends.” In response, the State sought to



                                             4
introduce photographs from Coleman’s Facebook page. Coleman objected, and the jury was

excluded. The trial court reviewed the photographs—one showed Coleman holding a

handgun; the other showed him holding a rifle. While the trial court excluded the photograph

showing Coleman holding a rifle, the trial court found the other photograph to be relevant

because it showed Coleman holding a black, semiautomatic pistol “in his life.”

¶11.   Coleman testified on his own behalf. He stated that the Facebook picture proffered

by the State had been taken four years before the crime when he was still in high school.

Coleman also stated that he was not in possession of a pistol the night of the shooting.

Coleman denied Blanchard’s allegations that he was the shooter and claimed to have fled

Club Rock upon hearing the gunshots.

¶12.   The jury found Coleman guilty of aggravated assault. The judge sentenced Coleman

to twenty years in prison, with five years suspended. The trial court denied Coleman’s motion

for a new trial. Coleman now appeals.

                                      DISCUSSION

¶13.   On appeal, Coleman argues that the photograph, introduced through a witness who

had no knowledge of the pistol and used as impeachment evidence, was irrelevant,

inflammatory, and prejudicial.3

       3
        Because this issue is dispositive, we need not address issues II and III. The errors
assigned on appeal are as follows:

       I.     Whether a photograph recovered from Coleman’s Facebook account was
              erroneous when the witness it was used to impeach testified to having no
              knowledge either of the photograph or of Coleman owning a gun.

       II.    Whether the trial court erred in limiting Coleman’s cross-examination of

                                             5
¶14.   The photograph was proffered by the State to impeach the defense witness, Marcus

Johnson, who testified that he had never seen Coleman with a gun before. The photograph

was an undated, grainy image purportedly taken from Coleman’s Facebook page. The

following exchange took place between the State, the trial court, and defense counsel

regarding whether photograph should be admitted:

       [The State]:         My question to the witness was, had he ever been on
                            Tobias Coleman’s [F]acebook page. Those pictures were
                            taken from his [F]acebook page. And I was going to ask
                            him did he recognize Tobias from those photographs.4

       BY THE COURT: Okay

       [The State]:         And also I was going to ask him has he ever seen him
                            with a gun? That was going to be the first question. Ask
                            [sic] the Court can see in both of those photographs, the
                            defendant is holding a gun, both a handgun and a rifle.

¶15.   In response, defense counsel objected to the admission of the photograph on the basis

of relevance. The following exchange occurred between defense counsel and the trial court:

       [Defense Counsel]: Judge, if you will look at his hair on that picture, you can
                          tell that picture is years and years old.

       BY THE COURT: Well, from today, sure. I mean –


              Lieutenant Watson regarding his notes that designated other potential suspects
              in the shooting.

       III.   Whether the verdict was contrary to the weight of the evidence.
       4
         While the issue of whether Coleman’s Facebook page was authenticated properly
is not before this Court on appeal, we acknowledge that at no point during the trial did the
State seek to ascertain when the picture had been uploaded. See Smith v. State, 136 So. 3d
424, 433 (Miss. 2014) (holding that the court abused its discretion because the State failed
to provide evidence other than the defendant’s Facebook profile picture in determining
whether to authenticate messages purportedly sent by the defendant through Facebook).

                                             6
       [Defense Counsel]: That should be relevant when he was carrying a pistol,
                          too. Not that he’s ever used it in his life.

       BY THE COURT: What it shows is, him [Coleman] with a black-semi-
                     automatic pistol in his life. And it’s clearly him
                     [Coleman].

(Emphasis added.)

¶16.   We are troubled that the trial court did not apply the same logic when it refused to

allow Coleman to impeach the victim, who tested positive for marijuana the night of the

shooting. Coleman sought to cross-examine Blanchard regarding a toxicology screening

conducted by the hospital that demonstrated that Blanchard, the only eyewitness to the

shooting, tested positive for marijuana the night in question. The following exchange

demonstrates inconsistent reasoning by the trial court:

       [Defense Counsel]: So, would the Court be satisfied if he says he smoked
                          weed two days prior but not that day but it was in his
                          system? Does he need to testify that he’s never smoked
                          weed in his life?

       [The State]:         No, sir. That’s not relevant whether or not he’s ever
                            smoked weed in his life.

       BY THE COURT: That’s exactly right. What you’re seeking to do is, you’re
                     seeking to show that he was inebriated. And I understand
                     that. You’re hoping to show that he was – his
                     recollection of things would not be good because he was
                     impaired somewhat. Fair enough. That’s allowable. But
                     you can’t do it through that document with him.

       [Defense Counsel]: I understood that you should be able to impeach someone
                          with anything.

       BY THE COURT: Then you understood wrong. Who taught you evidence?

(Emphasis added.)

                                             7
¶17.   Not only did Blanchard—the only eyewitness to the shooting—test positive for

marijuana the night in question, but he also testified that he taken “Molly” and had been

drinking alcohol the entire day before arriving at Club Rock. We fail to see how the trial

court could at one point make the determination that, because Coleman had wielded a gun

“in his life,” a blurry, four-year-old photograph taken from Facebook was relevant, but that

a drug test conducted on Blanchard the night of the shooting was not, because “whether or

not he’s ever smoked weed in his life” was immaterial.5

¶18.   The trial court allowed the State to continue questioning Johnson regarding the

photograph, and Johnson testified that he had never seen Coleman’s Facebook page. When

shown the picture by the State, he identified Coleman but said he looked much younger than

he had looked at the time of shooting. When the State asked Johnson what Coleman was

holding, Johnson said that it “might be a BB gun” and that, if it was a gun, he could not

determine what type it was. With respect to the color of the weapon, Johnson testified that

it appeared to be silver.

¶19.   The State contends that the issue of whether it was proper to impeach Johnson with

the photograph was not preserved by Coleman during that portion of the trial. However,

       5
         Although not before this Court, substantial authority supports Coleman’s attempted
cross-examination of Blanchard with the toxicology test. See Brown v. State, 690 So. 2d
276, 286 (Miss. 1996) (holding that a drug test was admissible based on the fact that it was
relevant for the purpose of proving discrepancies in [the defendant]’s statement to police);
see also Newell v. State, 49 So. 3d 66, 73 (Miss. 2010) (finding the trial court’s exclusion
of a shooting victim’s blood toxicology results was reversible error because the trial court’s
refusal to admit the toxicology screening prevented the defendant from fully presenting his
defense theory); Byrd v. State, 154 Miss. 742, 123 So. 867, 869 (1929) (holding that the
defendant can raise the victim’s intoxication to demonstrate all the conditions existing at the
time and giving rise to the killing, including the victim’s mental state).

                                              8
immediately after Johnson testified that the gun portrayed in the photograph appeared to be

silver, the following exchange took place:

       [The State:]         When was the last time you had your eyes checked?

       [Johnson:]           I don’t remember.

       [The State:]         Okay. Do you have any problem with color vision?

       [Johnson:]           No sir.

       [The State:]         Okay. And you’re telling this jury – you’re
                            telling them –


       [Johnson:]           You’re telling me that don’t look silver?

       [The State:]         No, sir, it does not. Does that gun look silver to you?

       [Johnson:]           Yes, sir.

       [The State]:         Your Honor, now I believe that the photographs should
                            go into evidence for two reasons. One, it should go into
                            evidence to – because [Johnson] stated earlier, he had
                            never seen him with a gun, to impeach –
                            ...

       ...

       [Defense Counsel]: Your Honor, I would object to the picture, again. There’s
                          a lack of foundation. There’s a lack of relevancy. And
                          it’s inadmissible hearsay in this matter.

                            My client tells me that he has a picture that’s unblurred
                            [sic] that would show that the actual gun is silver. And I
                            asked that he be allowed to produce it.

       [The State]:         Your client can take the stand and testify to whatever he
                            wants to.




                                             9
       BY THE COURT: Okay. I will allow the picture to be introduced. I will at
                     least allow you to inquire of the witness, especially in
                     light of the fact that Mr. Blanchard [the victim] has
                     testified that there was a black semi-automatic pistol that
                     your client had on that particular night. And there was
                     an attempt to impeach him or he was impeached or
                     allowed to –

                            So I will allow this to come in.

(Emphasis added.)

¶20.   Therefore, the objection by Coleman preserved the issue. See Carter v. State, 722 So.

2d 1258, 1261 (Miss. 1998) (holding that a defense objection on the grounds of relevance,

but not specifically on the grounds of Rule 404(b), was not procedurally barred since Rule

404(b) is an issue of relevance and the defense had objected on the grounds of relevance).

¶21.   The trial transcript above also illustrates that the trial court based its evidentiary

decision, in part, on Blanchard’s testimony. Blanchard believed the handgun used by

Coleman to be of a .40 or .45 caliber. However, when asked on cross-examination if he

recalled giving a statement to the police in which he stated Coleman was carrying a .380

caliber weapon, Blanchard replied that he could not recall. Upon later taking the stand,

Coleman testified that, while he was in the photograph, it had been taken four years prior to

the shooting; he was holding a neighbor’s weapon simply “trying to look cool.”

¶22.   In support of the admission of the Facebook photograph, the State relies on both

Grant v. State, 762 So. 2d 800, 805 (Miss. Ct. App. 2000), and Fraise v. State, 17 So. 3d

160, 166 (Miss. Ct. App. 2009). In those cases, also cited by the concurrence, the Court of

Appeals found that the probative value of photographs in which the defendants appeared



                                             10
holding guns had not been outweighed sufficiently by the prejudicial effect. The State

contends that each case “directly addressed” the issue before this Court; however, both cases

are distinguishable.

¶23.   In Grant, the defendant was on trial for armed robbery and possession of a concealed

weapon by a convicted felon. Grant, 762 So. 2d at 803. At trial, not only did two

eyewitnesses testify that Grant had been holding the gun, but one eyewitness testified with

particularity about the distinctive features of the gun in question. Id. at 805. Specifically, the

witness described the gun as a “.357 [caliber] that had a black handle with molded hand grips

and an emblem imprinted on the side of the handle.” Id. at 803. Further, the gun recovered

from the crime scene appeared identical to the gun documented in the photograph. Id. at 805.

As a result, the court found the admission of the photograph to have been more probative

than prejudicial. Id. at 806.

¶24.   Likewise, in Fraise, the defendant also was on trial for armed robbery and possession

of a weapon by a convicted felon. Fraise, 17 So. 3d at 162. Three eyewitnesses to the armed

robbery described the gun used by the assailant as “black and silver in color.” Id. at 166

(emphasis added). As in Grant, the gun in the photograph recovered from the defendant’s

home appeared identical to the distinctive features of the gun described in the three

eyewitnesses’ testimony. Id. Therefore, the court found the photograph highly probative and

held its admission had not been an abuse of discretion. Id.

¶25.   Unlike Grant and Fraise, here, no eyewitnesses other than the victim testified that

Coleman had been the shooter. Neither the gun nor the caliber of the gun used in the shooting



                                               11
could be ascertained from the evidence. Additionally, the color of the weapon and the exact

kind of weapon depicted in the picture were disputed. Most importantly, Coleman testified

that the photograph had been taken four years prior to the shooting. The holdings in Grant

and Fraise are thus distinguishable.

¶26.   The concurrence also cites Ross v. State, 954 So. 2d 968, 993 (Miss. 2007), in which

this Court held that “Rule 401 is construed broadly in favor of admitting evidence with even

slight probative value.” Respectfully, however, Ross is not applicable here. First, in Ross,

the defendant sought to suppress the introduction of what was alleged to have been the actual

murder weapon, not a grainy, undated photograph from Facebook that the testifying witness

knew nothing about. Id. Second, an eyewitness testified that the defendant had thrown the

weapon in the same ditch in which it eventually was recovered after the defendant allegedly

had admitted to the murder. Id. Third, the weapon was a .22 caliber pistol, which not only

was found in the ditch behind where the victim was killed, but also was of the same caliber

as the weapon responsible for the victim’s death. Id. Fourth, the State identified the owner

of the weapon and demonstrated that the defendant had access to it. Id. Finally, the issue was

not preserved properly by the defendant at trial and, thus, was procedurally barred from

appellate review. Id. Even so, because Ross had been charged with capital murder, a plain-

error analysis was conducted to determine whether the admission of the weapon was proper.

Id. at 992. As such, this Court found that, “[u]nder the circumstances, the trial court did not

abuse its discretion in admitting the pistol into evidence.” Id. at 993 (emphasis added).




                                              12
¶27.   This Court is mindful of the wide discretion afforded a trial judge with respect to the

admission and exclusion of evidence. But this Court has a constitutional duty to enforce the

rules promulgated by this Court “fairly, evenly and predictably.” Patton v. State, 34 So. 3d

563, 572 (Miss. 2010). The bench and bar are entitled to rely on this Court “to apply the rules

no less diligently to the courts than to the lawyers and litigants.” Id.

¶28.   When prejudicial evidence is admitted that fails to link the defendant to the crime

alleged, the decision of the trial court to admit such evidence constitutes an abuse of

discretion. See Walker v. State, 878 So. 2d 913, 917 (Miss. 2004) (holding that the trial court

erred in admitting a towel allegedly containing the defendant’s semen because “the [State]’s

failure to positively connect the semen on the towel to [the defendant] render[ed] the towel

inadmissible”).

¶29.   Though an abuse-of-discretion standard affords great discretion to the trial judge,

“[t]his Court has not hesitated to invoke its authority to order a new trial and allow a second

jury to pass on the evidence where it considers the first jury’s determination of guilt to be

based on extremely weak or tenuous evidence[.]” Dilworth v. State, 909 So. 2d 731, 737

(Miss. 2005).

¶30.   A factually analogous decision relating to the admission of highly prejudicial

photographs is the Florida Supreme Court’s ruling in Agatheas v. State, 77 So. 3d 1232 (Fla.

2011), in which the Florida Supreme Court considered whether the admission of

photographs of a gun recovered from a backpack in the defendant’s possession five years

after the charged murder was error. Id. at 1237. The Florida Supreme Court in Agatheas



                                              13
determined that the gun, which was discovered five years after the crime and which had a

different caliber than the bullet casings found at the crime scene, was in no way related to the

murder. Id.

¶31.   Moreover, the Florida Supreme Court in Agatheas held that the gun, along with the

photographs of the gun, were not relevant to corroborate the testimony of the State’s witness,

the defendant’s former girlfriend. Id. at 1239. The girlfriend had testified that the backpack

in which the defendant kept his gun was missing on the night of the murder. Id. The Florida

Supreme Court found that the gun recovered from the backpack was relevant only to

demonstrate the defendant’s bad character or propensity; thus, the admission of the

photographs and testimony regarding the weapon was “unquestionably error.” Id. at 1241.

¶32.   Here, we fail to understand the probative value of a blurry, undated photograph

showing Coleman, years prior to the alleged crime, holding an unidentified weapon—the

type and color of which were disputed. We agree with the concurrence that the photograph

neither impeached Johnson’s testimony regarding whether he had ever seen Coleman with

a gun, nor did it corroborate Blanchard’s testimony that he had been shot by a “black, semi-

automatic weapon.” Instead, the photograph was admitted by the trial court to show that

Coleman had possessed a pistol at some point “in his life.” Moreover, because no evidentiary

connection was established by the State between Johnson’s testimony, the Facebook

photograph, and the weapon alleged to have been used by Coleman, the admission of such

a photograph, as stated so eloquently in Agatheas, would be only to “demonstrate [the

defendant]’s bad character or propensity.” Id. at 1239.



                                              14
                                      CONCLUSION

¶33.   Because the trial court abused its discretion by admitting the photograph, Coleman’s

conviction and sentence for aggravated assault are reversed, and this case is remanded to the

trial court for a new trial.

¶34.   REVERSED AND REMANDED.

      KITCHENS, P.J., KING, COLEMAN, BEAM, CHAMBERLIN AND ISHEE,
JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN RESULT WITH
SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J.; WALLER, C.J.,
AND BEAM, J., JOIN IN PART.


       MAXWELL, JUSTICE, CONCURRING IN PART IN RESULT:

¶35.   I agree with the majority that this case should be reversed and remanded. But the

problem here is not with the photograph itself—it is the manner in which the State introduced

it. I find no fault with the judge’s general discretionary call that the photograph of Coleman

brandishing a pistol was of sufficient probative value. But I do find he erred in admitting it

as impeachment evidence. I write separately to address that notion.

       I.      Mississippi Rules of Evidence 401 and 403

¶36.   The majority re-weighs the evidence—giving its own personal view of the

photograph’s evidentiary worth. I respectfully suggest this approach is inappropriate because

it cuts against the broad discretion granted trial judges when making general evidentiary

calls. “Rule 401 is construed broadly in favor of admitting evidence with even slight

probative value.”     Ross v. State, 954 So. 2d 968, 993 (Miss. 2007) (citation omitted)

(emphasis added). And this Court has been consistent and clear that trial judges have “sound



                                             15
discretion” whether to admit potentially prejudicial evidence. Baldwin v. State, 784 So. 2d

148, 158 (Miss. 2001). Indeed, “[u]nder Rule 403, the exclusion of prejudicial evidence is

permissive”—meaning exclusion of such evidence is not mandated by rule. Ross, 954 So.

2d at 993 (emphasis added). In other words, even in those instances in which “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.” Id. (emphasis

added).

¶37.   Blanchard testified that Coleman was the shooter. But the actual pistol was not

recovered, and the bullet could not be removed safely from Coleman’s head for comparison

with the recovered shell casings. Blanchard had already described the pistol as a black pistol

bearing semiautomatic characteristics. And the judge found Coleman’s pistol in the

photograph to have been similar enough to Blanchard’s description to be relevant and

admissible. Not only is this a discretionary call on the trial judge’s part, but the Court of

Appeals has directly addressed similar findings at least twice.

¶38.   In Grant v. State, the Court of Appeals affirmed a trial judge’s admission of a

photograph of the defendant “wielding a gun that appears to be identical to the weapon used

in the robbery . . . .” Grant v. State, 762 So. 2d 800, 805 (Miss. Ct. App. 2000). Though the

photograph was prejudicial, it was also highly probative. Id. In Fraise v. State, the Court

of Appeals again affirmed a trial judge’s decision to admit a photograph of a defendant

“holding a handgun almost identical to the one used in the robbery.” Fraise v. State, 17 So.

3d 160, 166 (Miss. Ct. App. 2009). Because the photograph depicted the defendant with a



                                              16
gun similar to the one used in the alleged crime, the court deemed it “highly probative.” Id.

See also United States v. Brooks, 715 F.3d 1069, 1077 (8th Cir. 2013) (photographs showing

defendant in possession of a firearm resembling the one used in a bank robbery were

admissible because evidence was intrinsic to charged offense); Johnson v. United States,

701 A.2d 1085, 1092 (D.C. 1997) (photograph of defendant holding revolver of same caliber

as gun used in murder was admissible, even though photograph was more than a year old,

“because the requisite link was made between the gun” depicted in photograph and the gun

used in the crime).

¶39.   That this particular photograph may have been older perhaps tempered its weight

some, but it did not, in the judge’s view, impermissibly overshadow its probative value. Had

the photograph been authenticated, introduced by, and admitted through a proper sponsoring

witness during the State’s case, or perhaps in rebuttal, I would have no concern with its

admission. But it was not.

       II.    Improper Impeachment

¶40.   Instead, the State tried to shoehorn the photograph in evidence after it rested. It

waited until the defense’s case-in-chief and tried to cast the photograph as impeachment

evidence. This occurred after a defense witness testified he had never seen Coleman with

a gun. The problem with admitting the photograph in this posture was the fact that the

witness testified he had never visited Coleman’s Facebook page—the site on which Coleman

was alleged to have posted the photograph. And the witness had never previously seen the

subject photograph. In other words, the witness did not testify about anything for which the



                                             17
photograph could be used to impeach him. So the photograph was not proper extrinsic

impeachment evidence. The defendant lodged an objection to the photograph’s admission

as impeachment evidence, which should have been sustained. For this reason, under the facts

of this particular case, I agree with the majority that reversal is appropriate.

     RANDOLPH, P.J., JOINS THIS OPINION. WALLER, C.J., AND BEAM, J.,
JOIN THIS OPINION IN PART.




                                              18
