                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 97-KA-00568-SCT
LASHAWN McFARLAND a/k/a LASHAWN D. McFARLAND
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                                 04/04/97
TRIAL JUDGE:                                      HON. JOHN B. TONEY
COURT FROM WHICH APPEALED:                        RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                           JIM WAIDE
ATTORNEY FOR APPELLEE:                            OFFICE OF THE ATTORNEY GENERAL
                                                  BY: DEIRDRE McCRORY
DISTRICT ATTORNEY:                                JOHN KITCHENS
NATURE OF THE CASE:                               CRIMINAL - FELONY
DISPOSITION:                                      REVERSED AND REMANDED- 3/18/99
MOTION FOR REHEARING FILED:                       3/29/99
MANDATE ISSUED:                                   5/20/99




     EN BANC.


     SMITH, JUSTICE, FOR THE COURT:


                                    STATEMENT OF THE CASE

¶1. On January 22, 1996, the Grand Jury of Rankin County, Mississippi, indicted Lashawn McFarland for
an armed robbery which occurred on October 30, 1995, at the Best Western motel in Pearl, Mississippi.
McFarland was arrested for this charge on November 14, 1995, and arraigned on March 15, 1996.

¶2. At the time of arraignment, a trial date was set for July 18, 1996. However, on July 13, 1996, there
was a joint agreed motion between court-appointed counsel and the State for a continuance and an agreed
order of continuance which continued the case until October 31, 1996. On July 16, 1996, court-appointed
counsel gave notice of an insanity defense.

¶3. However, on December 18, 1996, McFarland then retained another attorney, Jim Waide, to represent
him. McFarland gave notice of an alibi defense on January 6, 1997, stating that on the date of the robbery,
he was at work for Wackenhut Security. However, this alibi defense could not be verified because
Wackenhut lost McFarland's work records during a company move in November 1996.
¶4. The trial was held on March 12-14, 1997, in Rankin County, Mississippi, Honorable John B. Toney,
Circuit Judge, presiding. McFarland was found guilty of the crime of robbery with a deadly weapon by a
jury on March 14, 1997. However, the jury was not able to agree on the appropriate sentence, and the trial
judge accordingly sentenced McFarland to serve a term of (10) years in the custody of the Mississippi
Department of Corrections and to pay all court costs, fees, and assessments on or before the ninetieth
(90th ) day following release from custody.

¶5. Aggrieved by the trial court's judgment, McFarland appeals and raises the following issues:

     I. THE COURT ERRED IN ADMITTING EVIDENCE OF OTHER ARMED
     ROBBERIES FOR THE PURPOSE OF IMPEACHING MCFARLAND'S TESTIMONY
     THAT HE HAD NEVER POINTED A GUN AT ANYONE.

     II. THE COURT VIOLATED MCFARLAND'S FEDERAL AND STATE
     CONSTITUTIONAL RIGHTS TO BE FREE FROM DOUBLE JEOPARDY BY
     INTRODUCING EVIDENCE CONCERNING THE ROBBERY IN MADISON COUNTY
     FOR WHICH MCFARLAND HAD BEEN ACQUITTED.

     III. THE COURT ERRED IN NOT DECLARING A MISTRIAL WHEN THE
     PROSECUTOR QUESTIONED MCFARLAND ABOUT HIS FAILURE TO TESTIFY AT
     THE MADISON COUNTY TRIAL.

     IV. THE CIRCUIT COURT ERRED IN INSTRUCTING THE JURY THAT THE STATE
     DID NOT HAVE TO DISPROVE DEFENDANT'S ASSERTED ALIBI (THAT
     DEFENDANT WAS AT WORK).

     V. THE INDICTMENT SHOULD BE DISMISSED BECAUSE OF VIOLATION OF
     MCFARLAND'S SPEEDY TRIAL RIGHTS UNDER THE MISSISSIPPI AND UNITED
     STATES CONSTITUTIONS.

                                           LEGAL ANALYSIS


     I. THE COURT ERRED IN ADMITTING EVIDENCE OF OTHER ARMED
     ROBBERIES FOR THE PURPOSE OF IMPEACHING MCFARLAND'S TESTIMONY
     THAT HE HAD NEVER POINTED A GUN AT ANYONE.

¶6. Before trial, defense counsel made a motion in limine to prohibit the State from mentioning any of
McFarland's other offenses. Specifically, McFarland had been charged with four other armed robberies of
hotels in various counties, which were in various stages of the prosecutorial process. The first offense
occurred on October 21, 1995, in Hinds County, Mississippi. McFarland had been tried for this offense,
however, this resulted in two (2) mistrials. The second offense occurred on November 5, 1995, at the
Comfort Inn in Ridgeland, Mississippi. However, McFarland was previously tried and acquitted of this
offense. The third offense also occurred on November 5, 1995, at the Comfort Inn in Vicksburg,
Mississippi. McFarland had been indicted but had not been to trial for this offense at the time of the trial
regarding the present appeal. The fourth offense, which is at issue in this appeal, occurred on October 30,
1995, at the Best Western motel in Pearl, Mississippi.
¶7. Defense counsel argued that these offenses were not admissible as evidence under Miss. R. Evid.
404(b) and 403. In response, the State maintained that these prior offenses were relevant to show modus
operandi and identity. Specifically, the State pointed out that the victims would testify that a young black
male whom they identified as McFarland, walked into their hotel lobby and robbed them using a firearm.
Some of the victims would testify that he used a silver or chrome handgun, and some would testify that he
asked only for "big bills." The State contended that these similarities established with certainty that
McFarland used identical modus operandi, and that it was the same person, whom they identified as
McFarland, committing each one of these crimes. The State further maintained that this evidence was not
unfairly prejudicial to McFarland under Rule 403, because he could always point out that he had been
acquitted of the charge in Madison County and that the charges in Hinds County had been nolle prosed
after two (2) mistrials.

¶8. The trial judge granted McFarland's motion in limine and ruled that there would be no reference to any
other charges in either the opening statement or in the case in chief. The trial judge's ruling was based upon
the fact that there were factual problems in the other cases pending in the other counties, and it would tend
to confuse the jury and cause undue delay.

¶9. However, during direct examination, McFarland testified that he had never pointed a gun at anyone and
had never robbed anyone. Thereafter, defense counsel made another motion in limine to prohibit any cross-
examination regarding this statement and specifically by the use of the other charges. Defense counsel
pointed out that the prejudicial effect of allowing the use of the other charges to impeach the defendant
would far exceed the probative value. The trial judge denied the defendant's motion in limine and ruled that
the evidence concerning the other charges would be allowed to impeach the defendant's credibility.

Rule 403 Analysis

¶10. Rule 403 provides as follows:

      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the
      danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
      undue delay, waste of time, or needless presentation of cumulative evidence.

M.R.E. 403.

¶11. The Rule 403 problem here is the acquittal in Madison County. Specifically, on direct examination,
McFarland brought out the fact that the trial for the Hinds County charge had resulted in two mistrials, that
he did not know whether he would go to trial for the Warren County charge, and that he had been
acquitted of the charge in Madison County. On cross-examination, the State questioned McFarland about
the Ridgeland robbery, as follows:

      Q. Okay. Now, in Madison County when they had the trial there regarding the Ridgeland robbery . . .
      was that, that Ridgeland robbery, was that of a hotel also?

      A. Yes, sir.

      Q. Okay. Regarding a man with a silver gun?

      Mr. Waide (defense counsel): Your honor, excuse me. . . . I want to renew my objection on the
      double jeopardy point of the Fifth Amendment. It's not proper to utilize that - that trial in this case.

      He can't - the State is bound to accept - a not guilty verdict is final and binding. They cannot go
      behind a not guilty verdict in Madison County.

      The COURT: Overruled.

¶12. Impeachment by use of a charge for which McFarland had been previously acquitted drastically
increases the amount of prejudice under M.R.E. 403. Blanks v. State, 451 So.2d 775, 778 (Miss.1984);
Accord Wilkins v. State, 603 So.2d 309, 323 (Miss.1992) (holding that a witness should not be cross-
examined regarding his involvement with crimes for which he has not been convicted); See also Horne v.
State, 487 So.2d 213, 217 (Miss. 1987) (noting that before the adoption of the new Rules of Evidence, it
was the rule in Mississippi that a witness could be impeached on cross examination by references to crimes
only if they resulted in convictions). Therefore, without addressing any possible constitutional violations, we
find that reversible error was committed by the trial court in allowing the district attorney to offer
impeachment evidence regarding a previous charge for which McFarland had been acquitted. The trial
court's judgment is reversed, and the case will be remanded for a new trial.

      II. THE COURT VIOLATED MCFARLAND'S FEDERAL AND STATE
      CONSTITUTIONAL RIGHTS TO BE FREE FROM DOUBLE JEOPARDY BY
      INTRODUCING EVIDENCE CONCERNING THE ROBBERY IN MADISON COUNTY
      FOR WHICH MCFARLAND HAD BEEN ACQUITTED.

      III. THE COURT ERRED IN NOT DECLARING A MISTRIAL WHEN THE
      PROSECUTOR QUESTIONED MCFARLAND ABOUT HIS FAILURE TO TESTIFY AT
      THE MADISON COUNTY TRIAL.

      IV. THE CIRCUIT COURT ERRED IN INSTRUCTING THE JURY THAT THE STATE
      DID NOT HAVE TO DISPROVE DEFENDANT'S ASSERTED ALIBI (THAT
      DEFENDANT WAS AT WORK).

      V. THE INDICTMENT SHOULD BE DISMISSED BECAUSE OF VIOLATION OF
      MCFARLAND'S SPEEDY TRIAL RIGHTS UNDER THE MISSISSIPPI AND UNITED
      STATES CONSTITUTIONS.

¶13. Discussion of issues II through V is rendered moot by the reversal required in Issue I.

                                               CONCLUSION

¶14. This Court holds that the evidentiary rules governing propriety of impeachment by contradiction are
Rules 402 and 403. Reversible error lies here in the fact that the prosecution used a prior charge of which
McFarland was acquitted in Madison County. Use of a prior charge for which a defendant is acquitted by
the prosecution is highly prejudicial and therefore violative of M.R.E. 403. Because these events are
unlikely to transpire on retrial, we do not consider whether the Rule 402 and Rule 403 analysis would
dictate admission of evidence involving charges as to which there has not been a final resolution.
Accordingly, the trial court's judgment is reversed, and this case is remanded for a new trial.

¶15. REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, MILLS AND WALLER, JJ.,
CONCUR. McRAE, J., CONCURS IN RESULT ONLY.
