                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2012-CT-00231-SCT

ANTHONY CAROTHERS a/k/a ANTHONY
CARROTHERS a/k/a ANTHONY CARRUTHERS
a/k/a AMP

v.

STATE OF MISSISSIPPI

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         11/04/2011
TRIAL JUDGE:                              HON. ANDREW K. HOWORTH
TRIAL COURT ATTORNEYS:                    HONEY USSERY
                                          JOSH TURNER
COURT FROM WHICH APPEALED:                LAFAYETTE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                          BY: GEORGE T. HOLMES
                                              PHILLIP BROADHEAD
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: SCOTT STUART
DISTRICT ATTORNEY:                        BENJAMIN F. CREEKMORE
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              THE JUDGMENT OF THE COURT OF
                                          APPEALS IS REVERSED. THE JUDGMENT
                                          OF THE LAFAYETTE COUNTY CIRCUIT
                                          COURT IS REINSTATED AND AFFIRMED -
                                          12/11/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       PIERCE, JUSTICE, FOR THE COURT:

¶1.    Anthony Carothers was convicted of two counts of aggravated assault and sentenced

to consecutive twenty-year terms in the Mississippi Department of Corrections for each count
(twenty years on Count I, and twenty years on Count II with five years to serve and fifteen

years suspended). On direct appeal before the Court of Appeals, Carothers argued that the

trial court erred by allowing the State to treat Sheena Carothers (Carothers’s half-sister and

the victim of the assaults) as a hostile witness. Finding merit to Carothers’s argument, the

Court of Appeals reversed his convictions and remanded for a new trial. Carothers v. State,

2012-KA-00231-COA, 2013 WL 5788776 (Miss. Ct. App. Oct. 29, 2013), reh’g denied

(May 6, 2014). The State petitioned for writ of certiorari, asserting that the Court of Appeals

had misapprehended material facts, including testimony of other witnesses. We granted the

State’s petition.

                             FACTUAL BACKGROUND

¶2.    Carothers and Sheena are half-siblings. On the night of the incident, Sheena had taken

her four children to Carothers’s house for him to keep them while Sheena went out for the

evening. Two other adults, Tanesshia Tyson and Jesse Booker, were with Sheena when she

drove to Carothers’s house. There, Carothers and Sheena got into an argument and Sheena

exited the home. There are two versions of what happened next.

       Version 1

¶3.    According to Tyson’s trial testimony, sometime after arriving at Carothers’s house,

Tyson and Booker walked three of the children inside Carothers’s home. Sheena’s two-year

old child, Skylar, remained in Sheena’s car. While inside the home, Tyson heard a gunshot

outside. Tyson walked outside and saw Carothers holding a small, black handgun in his

hand. The front passenger window to Sheena’s vehicle was broken, and Tyson claimed it

was shot out by Carothers. Tyson told Carothers to “calm down and stop.” By that time,

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Sheena was in her car, backing out of the driveway. Carothers told Tyson to move out of the

way, “if [Tyson] didn’t want to get shot[.]” Carothers aimed the gun toward Sheena and fired

a second shot. Afterward, Carothers got into his truck and drove down the street after Sheena

in the direction of Tyson’s house, located just up the street. Tyson followed behind. When

Tyson arrived up the road around the corner from Carothers’s home, she saw Sheena lying

in the middle of the road, bleeding; Sheena’s vehicle was sitting in a field nearby; Skylar was

still in the vehicle, sitting in the back seat of the car. Tyson said her aunt and uncle, Mary

and Woodrow McThune, who live up the road from Carothers’s home, were at the scene

when she arrived. Carothers was not at the scene when Tyson arrived. Tyson later provided

a statement to authorities, who were called to the scene shortly afterward. According to

Tyson, Carothers called Tyson later, apologizing for what had happened. He also sent Tyson

a text message, warning her not to talk to the police.

¶4.    Woodrow testified that, on the night of the incident, he heard the sound of a car hitting

the back of another car. Woodrow walked out the front door of his home and “saw a red

Blazer hit a Crown Vic, and they proceeded on around the road,” which loops around

Woodrow’s house. At that point, Woodrow walked back through the house, and he and his

wife Mary exited through the back door of the house. Woodrow then saw a car sitting in the

field, and a young lady “laying almost in the highway, . . . covered in blood[,]”

approximately seventy-five feet from the car. Mary called 911. Woodrow got Skylar out of

Sheena’s vehicle. Woodrow gave a statement to authorities after they arrived on the scene,

which Woodrow testified was substantially the same as his testimony.




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¶5.    Mary testified that, on the night of the incident, she saw a woman lying in the middle

of the street. Her face was swollen, and blood was coming out of her mouth. Mary asked

the woman who she was, to which the woman replied, “Sheena.” Mary asked Sheena who

did this to her, to which Sheena replied, “Anthony.” Mary also provided a statement to

authorities on the night of the incident, which Mary attested at trial was substantially the

same as her trial testimony.

¶6.    Debra Heller, an emergency-room nurse at Baptist Hospital where Sheena was taken,

testified that Sheena was admitted to the emergency room complaining that she had been

assaulted.

¶7.    Investigator Jarett Bundren with the Lafayette County Sheriff’s Department testified

that, during his investigation, he spoke with Sheena that evening while she was at the

hospital. Sheena told Investigator Bundren that, when she took her children to Carothers’s

house for Carothers to watch, Carothers became irate. Carothers came outside and shot her

window out. Sheena threw her car into reverse and backed out of Carothers’s driveway.

Carothers shot at her again. Sheena headed north on Old Taylor Road; Carothers drove up

behind her and bumped her vehicle, causing her to wreck. Sheena jumped out of the car and

took off running. Carothers chased her, caught her, and began slamming her face into the

pavement and kicking her all over her body.

       Version 2

¶8.    At trial, Sheena was called to testify on behalf of the State. Sheena testified that she

caused the argument with Carothers when he refused to babysit her children. When Sheena

attempted to get the remaining child, Skylar, out of the car, she threw a small tool at

                                              4
Carothers, breaking the passenger window. Sheena said she drove away from Carothers’s

house at a fast rate of speed and that Carothers followed her in his vehicle because he was

concerned for Skylar’s safety. Sheena testified that she lost control of her vehicle because

she was speeding and ran into a parked truck, but she was not badly injured.

¶9.    At this point in Sheena’s testimony, the State sought permission to treat Sheena as a

hostile witness. Carothers objected, arguing that Sheena was not being hostile and that her

testimony was consistent with testimony Sheena previously had given at a bond hearing for

Carothers. The trial court allowed the State to treat Sheena as an adverse witness. The State

then proceeded to ask Sheena leading questions and read portions of Investigator Bundren’s

report. Sheena denied that she had ever talked to Investigator Bundren, and she disputed

every detail of the other version of her story.

¶10.   Carothers gave testimony substantially similar to Sheena’s trial testimony during his

case-in-chief.

       Direct Appeal:

¶11.   On direct appeal, Carothers argued he was denied a fair trial because the State was

allowed to introduce prior, inconsistent statements of its own witness. Carothers contended

that allowing the State to treat Sheena as a hostile witness was improper because the State

was not “surprised” by her testimony and that she was not “hostile” to the State’s

questioning, for purposes of Rule 607 of the Mississippi Rules of Evidence. The Court of

Appeals agreed, finding that the trial court had abused its discretion because the State was

not surprised by Sheena’s testimony. The Court of Appeals found that the error constituted

reversible error because (1) if the trial court had not allowed the State to introduce the


                                              5
impeachment testimony against Sheena, her testimony would have corroborated Carothers’s

testimony, and (2) without the impeachment testimony, there was no overwhelming evidence

of guilt; and both Sheena’s and Carothers’s testimony contradicted Tyson’s version of the

events that night.

       Petition for Writ of Certiorari

¶12.   The State petitioned for writ of certiorari, claiming that the Court of Appeals had

failed to take into account testimony from both Woodrow and Mary in its analysis of the

case. The State contends that this testimony corroborated the State’s theory of the case, and

the Court of Appeals had erred by not affirming Carothers’s conviction under harmless error.

¶13.   Having granted the State’s certiorari petition, we find that the Court of Appeals did

not take into consideration Rule 801(d)(1)(c) (identification evidence), Rule 803(2) (excited

utterances), and Rule 803(4) (medical diagnosis and treatment) of the Mississippi Rules of

Evidence. Because each of the complained-of statements would not have been excluded by

the rule against hearsay, any error by the trial court with regard to these statements for

purposes of Rule 607 was harmless beyond a reasonable doubt. Further, we hold that while

the elements of surprise and/or unexpected hostility are an acceptable basis for allowing a

party to impeach its own witness, neither is required for purposes of Rule 607. To the extent

Wilkins v. State, 603 So. 2d 309, 322 (Miss. 1992), holds otherwise, it is hereby overruled.

Instead we hold that, in order to prevent abuse of Rule 607, impeachment of one’s own

witness should be only allowed when circumstances indicating good faith and the absence

of subterfuge are present.

                                      DISCUSSION

                                             6
¶14.   An appellate court’s standard of review of a trial court’s admission or exclusion of

evidence is abuse of discretion. Osborne v. State, 54 So. 3d 841, 845 (Miss. 2011).

“Reversal is proper only where ‘the error adversely affects a substantial right of a party.’”

Id. (quoting Ladner v. State, 878 So. 2d 926, 933 (Miss. 2004)). A trial court’s decision will

be affirmed on appeal where the right result is reached, even though we may disagree with

the reason for that result. Smith v. State, 25 So. 3d 264, 273-74 (Miss. 2009).

¶15.   Rule 607 provides that “[t]he credibility of a witness may be attacked by any party,

including the party calling him.” Under this rule, a party may introduce for impeachment

purposes unsworn pretrial inconsistent statements by the party’s own witness. Wilkins v.

State, 603 So. 2d 309, 322 (Miss. 1992). Generally, because such statements are fraught

with hearsay problems, they may be introduced at trial only for impeachment purposes, not

as substantive evidence. Id. While Rule 607 makes no mention of it, this Court’s precedent

requires that “before a party will be authorized to introduce for impeachment purposes an

unsworn pretrial inconsistent statement of his own witness,” there must be a showing of

“surprise” by the witness’s testimony “or unexpected hostility” from the witness. Id.

Though most other jurisdictions no longer require such a showing, primarily because they

regard the requirement as an unnecessary remnant of the common-law voucher rule, which

Rule 607 purportedly was enacted to do away with,1 Mississippi does, for reasons expressed

by the Wilkins Court. According to Wilkins, “if there is in fact no surprise, the only possible




       1
           “Rule 607 is a repudiation of the old voucher rule.” Miss. R. Evid. 607 cmt.

                                              7
motive for attempting to impeach one’s own witness is to get otherwise inadmissible

testimony into evidence.” Id. at 321.

¶16.   We think this is too skeptical a view of Rule 607. Our rule is patterned after Rule 607

of the Federal Rules of Evidence. In a special concurring opinion in James v. State, 124 So.

3d 693, 704 (Miss. Ct. App. 2013), Judge Maxwell pointed out that Rule 607, in general,

“was predicated on the modern reality that ‘a party does not hold out his witness as worthy

of belief, since he rarely has a free choice in selecting them.’” James, 124 So. 3d at 702

(quoting Walker v. State, 144 Md. App. 505, 798 A.2d 1219, 1231 (2002), overruled on

other grounds). “In light of this reality, . . . any party, including the sponsoring party, may

attack the witness’s credibility.” James, 124 So. 3d at 702 (citing Miss. R. Evid. 607).

Because Federal Rule 607 did away with the voucher rule, federal courts have recognized

that “Rule 607 also did away with the exceptions used to get around the voucher rule.” Id.

(citing Walker, 798 A.2d at 1231; United States v. Ienco, 92 F.3d 564, 568 (7th Cir. 1996);

United States v. Kane, 944 F.2d 1406, 1412 (7th Cir. 1991); United States v. Webster, 734

F.2d 1191, 1193 (7th Cir. 1984); Robinson v. Watts Detective Agency, Inc., 685 F.2d 729,

740 (1st Cir. 1982); United States v. DeLillo, 620 F.2d 939, 946-47 (2d Cir. 1980); United

States v. Dennis, 625 F.2d 782, 795 n.6 (8th Cir. 1980); Scholz Homes, Inc. v. Wallace, 590

F.2d 860, 863 (10th Cir. 1979); United States v. Palacios, 556 F.2d 1359, 1363 (5th Cir.

1977); United States v. Long Soldier, 562 F.2d 601, 605 n.3 (8th Cir. 1977)).

¶17.   “[F]ederal courts shifted from honing on surprise to focusing on the actual purpose

for impeachment, asking whether the government is abusing Rule 607 by calling a witness

who otherwise has no useful, admissible evidence for the purpose of admitting prior

                                              8
inconsistent testimony suggesting the defendant’s guilt.” Jones, 124 So. 3d at 702-03

(Maxwell, J., specially concurring) (citing Kane, 944 F.2d at 1411; Webster, 734 F.2d at

1192; United States v. Morlang, 531 F.2d 183, 190 (4th Cir. 1975)). By “interpreting Rule

607 to have done away with the voucher rule and its exceptions of surprise and unexpected

hostility does not ignore [this Court’s] concerns in Wilkins–that the abolishment of the

voucher rule may lead to the inappropriate use of inadmissible hearsay evidence under the

guise of impeachment.” Jones, 124 So. 3d at 703. While Federal Rule 607 does not require

surprise, it also does not permit subterfuge. Id. (citing United States v. Miller, 664 F.2d 94,

97 (5th Cir. 1981)). “That is why the federal courts, when faced with the government

seeking to impeach its own witness, look for subterfuge–the abuse of Rule 607–and not

surprise–the exception to the abolished voucher rule.” Id. (citing DeLillo, 620 F.2d at 946-

47).

¶18.   We point out that the Wilkins Court saw no distinction between the two measures.

According to the Wilkins Court, the problem with the federal court’s rationale is “first, . . .

it makes admissibility of evidence depend on what is in the attorney’s head, a rather difficult

undertaking; and second, if there is in fact no surprise, the only possible motive for

attempting to impeach one’s own witness is to get otherwise inadmissible testimony into

evidence.” Wilkins, 603 So. 2d at 322. Wilkins opined, “Administering the rules of

evidence would be much easier if the Federal courts of appeal had, as [some] commentators

have suggested, directly interpreted Rule 607 as requiring surprise before permitting a party

to impeach his own witness with an unsworn prior inconsistent statement, rather than

reaching the identical result by indirection.” Id.

                                              9
¶19.   There are structural problems with this rationale. As Judge Maxwell pointed out in

his special concurrence in James, “by still mandating surprise or unexpected hostility,

Mississippi actually clings to the old disfavored mechanical approach that in fact led to the

creation of Rule 607.” James, 124 So. 3d at 703. Indeed, in criticizing Mississippi’s

common-law voucher rule, the United States Supreme Court in Chambers v. Mississippi, 410

U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973), explained:

       The rule rests on the presumption–without regard to the circumstances of that
       particular case–that a party who calls a witness “vouches for his credibility.”
       Clark v. Lansford, 191 So. 2d 123, 125 (Miss. 1966). Although the historical
       origins of the “voucher” rule are uncertain, it appears to be a remnant of
       primitive English trial practice in which “oath-takers” or “compurgators” were
       called to stand behind a particular party’s position in any controversy. Their
       assertions were strictly partisan and, quite unlike witnesses in criminal trials
       today, their role bore little relation to the impartial ascertainment of the facts.
       [Footnote omitted].

       Whatever validity the “voucher” rule may have once enjoyed, and apart from
       whatever usefulness it retains today in the civil trial process, it bears little
       present relationship to the realities of the criminal process. [Footnote omitted].
       It might have been logical for the early common law to require a party to
       vouch for the credibility of witnesses he brought before the jury to affirm his
       veracity. Having selected them especially for that purpose, the party might
       reasonably be expected to stand firmly behind their testimony. But in modern
       criminal trials, defendants are rarely able to select their witnesses: they must
       take them where they find them.

Chambers, 410 U.S. at 296.

¶20.   Argument similar to Wilkins’s rationale was presented to the Seventh Circuit Court

of Appeals in Webster. Rejecting it, Judge Posner, writing for the Webster Court, explained

as follows:

       Webster [ (the defendant) ] urges us . . . to go beyond the good-faith standard
       and hold that the government may not impeach a witness with his prior
       inconsistent statements unless it is surprised and harmed by the witness’s

                                               10
       testimony. But we think it would be a mistake to graft such a requirement to
       Rule 607, even if such a graft would be within the power of judicial
       interpretation of the rule. Suppose the government called an adverse witness
       that it thought would give evidence both helpful and harmful to it, but it also
       thought that the harmful aspect could be nullified by introducing the witness’
       prior inconsistent statement. As there would be no element of surprise, . . . the
       introduction of the prior statements [would be forbidden]; yet we are at a loss
       to understand why the government should be put to the choice between the
       Scylla of forgoing impeachment and the Charybdis of not calling at all a
       witness from whom it expects to elicit genuinely helpful evidence. The good-
       faith standard strikes a better balance.

Webster, 734 F.2d at 1193.

¶21.   We agree with this reasoning. The good-faith standard strikes a better balance

between the truth-finding process at trial and ensuring a fair trial for the parties concerned.

While the elements of surprise and/or unexpected hostility are (and remain) an acceptable

basis for allowing a party to impeach its own witness, they are not required for purposes of

Rule 607. We hold that, to prevent abuse of Rule 607, impeachment should not be allowed

where the trial court finds the purported purpose of impeachment for offering the

statement(s) is in bad faith, or is subterfuge to mask the true purpose of offering the

statement(s) to prove the matter asserted. See, e.g., State v. Hunt, 378 S.E.2d 754, 758 (N.C.

1989) (citing DeLillo, 620 F.2d 939; Webster, 734 F.2d 1191). Our trial judges are well-

suited to make these calls. To the extent that Wilkins holds otherwise, it is overruled.

¶22.   Here, Sheena was a principal witness in the case. While parts of her testimony were

not supportive of the State’s charges against Carothers, other aspects of her testimony were

relevant and provided important, detailed facts surrounding the incidents that led to the

charges. Although the State could not call Sheena solely for the purpose of impeaching her

with her prior statements, the State was entitled to prove the relevant facts about which

                                              11
Sheena testified. Based on the record before us, we find no abuse of discretion in the trial

court’s decision to allow the State to impeach Sheena’s testimony with prior contradictory

statements.

¶23.   Further, even if Rule 607 was inapplicable in this case, it cannot be said that Carothers

was denied his right to a fair trial, as each of the complained-of statements either was not

hearsay, or qualified under an exception to the rule against hearsay. See, e.g., Smith, 25 So.

3d at 273-74 (although victim’s out-of-court statements were not admissible as prior

inconsistent statements for impeachment purposes, the statements were admissible for

identification purposes under Rule 801(d)(1)(C)). Based on the record before us, we find that

Rules 801(d)(1)(C), 803(2), and/or 803(4) were applicable in this case.

¶24.   Pursuant to Rule 801(d)(1)(C), identification evidence is not hearsay and is admissible

as substantive material evidence. In 1977, prior to adopting our rules of evidence, this Court

held that when the principal witness’s identification testimony is impeached, “independent

evidence of the identification may be introduced through third persons present at the out-of-

court identification.” Fells v. State, 345 So. 2d 618, 622 (Miss. 1977), superseded by statute

on other grounds. The theory behind this standard is that the “initial identification, being

nearest in time to the event has . . . the greater likelihood of accuracy and truthfulness being

undimmed by fading memory and intervening events occasioned by the passage of time.”

Id. at 622.

¶25.   Similarly, Rule 803(2) provides an exception to the rule against hearsay for “excited

utterances.” The rule defines such a statement as “relating to a startling event or condition




                                              12
made while the declarant was under the stress of excitement caused by the event or

condition.” Miss. R. Evid. 803(2). The comment to the rule elaborates:

       The underlying theory of the excited utterance exception is that circumstances
       may create such an excited condition that the capacity for reflection is
       temporarily impeded and that statements uttered in that condition are thus free
       of conscious fabrication. . . . [T]he essential ingredient here is spontaneity.
       With respect to the time element, the issue is the duration of the excited state.
       This, depending on the exact circumstances of a case, can vary greatly. . . .

Miss. R. Evid. 803(2) cmt.

¶26.   Likewise, Rule 803(4) exempts statements made for purposes of medical diagnosis

and treatment from the otherwise stringent prohibition against hearsay. Immediately

following the alleged incidents with Carothers, Sheena, while lying wounded in the street,

told Mary that Carothers had done this to her. Miss. R. Evid. 801(d)(1)(C) and 803(2). Upon

arriving at the emergency room, Sheena told a treating nurse that her injuries resulted from

an assault. Miss. R. Evid. 803(4). Shortly thereafter, Investigator Bundren spoke with

Sheena while at the hospital. He said Sheena appeared scared, and she told him what had

transpired that evening and who was responsible. The trial court very well could have found

that Sheena’s statements to Investigator Bundren were related to a “startling event” while she

was “under the stress of the excitement caused by the event.” Miss. R. Evid. 803(2).

                                      CONCLUSION

¶27.   For these reasons, we find that the Court of Appeals erred in reversing Carothers’s

convictions and sentences. The judgment of the Court of Appeals is reversed, and the

Lafayette County Circuit Court’s judgment of conviction and sentences are reinstated and

affirmed.



                                              13
¶28. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE
JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT IS REINSTATED
AND AFFIRMED. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND
SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF
AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE
(5) YEARS TO SERVE AND FIFTEEN (15) YEARS SUSPENDED, AFFIRMED.
SENTENCES IN COUNT I AND COUNT II ARE TO BE SERVED
CONSECUTIVELY. APPELLANT IS TO PAY $1000 FINE AND $979.50 IN COURT
COSTS.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS,
CHANDLER, KING AND COLEMAN, JJ., CONCUR.




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