         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2017-KA-01759-COA

JALEN SHAQUILLE WILLIAMS A/K/A JALEN                                       APPELLANT
SHAQUILLE WILLIAMS SR. A/K/A JALEN
WILLIAMS

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                          04/12/2017
TRIAL JUDGE:                               HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT,
                                           FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                           BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: KAYLYN HAVRILLA McCLINTON
DISTRICT ATTORNEY:                         JOEL SMITH
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 04/02/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE CARLTON, P.J., TINDELL AND McDONALD, JJ.

       McDONALD, J., FOR THE COURT:

¶1.    Jalen Williams was convicted of capital murder on March 21, 2017. He appeals the

jury’s verdict and the trial court’s denial of his post-trial motions. Finding no error, this

Court affirms the trial court’s orders.

                                          FACTS

¶2.    In the early evening of July 22, 2014, Jalen Williams, age 19, and Rashad Johnson,

age 20, were shooting dice in the parking lot of a church in Gulfport, Mississippi. As they
left, they commented to others, including Justin Atkinson, that they were going to “hit a lick,”

meaning they were going to rob someone. That someone was Lamont Hayes who had

attended the dice game a couple of weeks earlier flashing one-hundred dollar bills.

According to Atkinson, Williams called him the next day to tell him about the robbery “gone

wrong.” Apparently, Williams and Johnson had entered the home with guns. Williams and

Hayes began tussling, and Williams called for Johnson’s help. Johnson came upon the two

and fired two shots at Hayes. They both fled, and Hayes later died from his wounds.

¶3.    Rashad Johnson pleaded guilty to murder and testified at Williams’s trial. He said that

the robbery was Williams’s idea and that Williams gave him one of the two guns Williams

had. They covered their faces with bandanas as they entered the home. Williams went to

Hayes’s bedroom while Johnson checked out the others. When Johnson entered Hayes’s

bedroom, Williams had his gun to Hayes’s head. Hayes was asleep but woke up when

Johnson came in. Hayes grabbed Williams’s arm, and Johnson started hitting Hayes in the

head to get him loose. But Hayes held on. Williams and Hayes got into the hallway and

were still struggling with each other when Johnson got hold of the gun they were fighting

over. Williams called to Johnson to get Hayes off him, which Johnson took as a directive to

shoot Hayes, which he did—twice in the leg. They both ran outside; Johnson gave Williams

his gun back, and they went their separate ways. Johnson was later arrested on drug and

firearm charges and ultimately gave a statement concerning the Hayes robbery and shooting.

¶4.    At trial, other witnesses testified including Hayes’s wife, Jennifer; his son, Xavier;

various law enforcement personnel; and the chief medical examiner. Williams did not



                                               2
testify, but the State introduced his 164-page interrogation transcript into evidence. In that

statement, after initially denying any involvement in the incident, Williams confessed that

he and Johnson had gone to the Hayes home, both armed, intending to scare Mr. Hayes into

giving up his money. But things went awry. He said that Johnson went in the house first and

down the hallway to Hayes’s bedroom. Williams followed. Hayes woke up, and Johnson

and Williams demanded his money. Hayes started to get out of bed, and Williams, who had

an unloaded gun, threatened Hayes not to move. Hayes grabbed Williams’s arm and started

fighting him. The fight moved into the hallway and then to the living room. Hayes was

trying to get the gun from Williams. Finally, it came loose, and Williams slid it away from

them and yelled for Johnson to get Hayes off of him. Williams said he did not know where

Johnson was, but he (Williams) finally got Hayes off, picked up the gun, and ran out the front

door. As he was running down the street, he heard gunshots.

¶5.    Other evidence included texts from Williams’s cell phone. In response to a text from

a friend called Ced who asked what Williams and “Little Snow” (Johnson) had done,

Williams responded: “Home invasion gone wrong.” Referring to another person who had

gone with them named Cook, Williams went on to say “[I]dk if yu kno cook but he took off

running on us and he supposed to be a gangsta.” Ced replied “[I]dk him cuz. Y’all straight

though.” Williams replied, “[Y]eah da n---- dead though.”

¶6.    At the end of the trial, the jury found Williams guilty of capital murder. The trial

court denied Williams’s post-trial motions and sentenced Williams to life without parole.

¶7.    On appeal, Williams raises only two issues that he claims merit reversal of his



                                              3
conviction: (1) whether the trial court erred in preventing Williams from cross-examining

Justin Atkinson about what sentence Atkinson could have received on another charge had

he not cooperated with the district attorney and testified in this case; and (2) whether the trial

court erred in not allowing Williams to call character witnesses.

                                 STANDARD OF REVIEW

¶8.    Limitations placed on cross-examination are reviewed using an abuse-of-discretion

standard. Johnson v. State, 242 So. 3d 145, 153 (¶15) (Miss. Ct. App. 2017). “The trial

court’s decision will stand unless the reviewing court concludes that the decision was

arbitrary and clearly erroneous, amounting to an abuse of discretion.” Id. Reversal is proper

only when the discretion of the trial court as to relevancy and admissibility of evidence has

been abused and a substantial right of a defendant has been affected. Timmons v. State, 44

So. 3d 1021, 1024 (¶10) (Miss. Ct. App. 2010). The Court reviews de novo a Confrontation

Clause objection. Smith v. State, 986 So. 2d 290, 296 (¶18) (Miss. 2008).

                                         DISCUSSION

       I.      Did the trial court err in limiting Williams’s cross-examination of
               Justin Atkinson?

¶9.    The State called Justin Atkinson to testify as to actions of Williams and his alleged

accomplice, Rashad “Snow” Johnson, prior to the actual robbery. This included statements

they made about what they were planning to do (“hit a lick”), what they were wearing, and

that weapons Williams had. Atkinson also testified about Williams’s coming to his house

the next day and telling him what had happened.

¶10.   At trial, Atkinson testified that he was currently serving a twelve-year sentence for

                                                4
possession of marijuana with intent. He recently had pleaded guilty to other charges:

possession of a firearm by a felon and transfer of a controlled substance. He had not been

sentenced on those charges, but the State had recommended a three-year sentence,

consecutive to his twelve years. He was asked:

       Q.      Do you know what your potential sentence is total between the two?

       A.      Fifteen years.

The State had clearly brought out that it had recommended a lesser sentence for the charges

Atkinson was still facing, with a reduction from fifteen to three years.

¶11.   On cross-examination, Williams’s attorney spent considerable time questioning

Atkinson about his latest arrest and how Atkinson had spoken to the police about the facts

of this case with the hope that such cooperation would positively affect the charges he was

facing:

       Q.      Okay. All right. So it’s true. You wanted to try and tell them what
               they wanted to hear that would help you get out of your trouble,
               right?

               ....

          Q.   You were trying to tell the officers things that you thought would
               help you get them to help you get out of your trouble, right?

       A.      Yes.

At this point, Williams’s attorney went further, trying to establish through Atkinson that

because he was a repeat offender, under the Uniform Controlled Substances Act, he was

subject to twice the sentence for the pending possession with intent to transfer charge that

he would normally get. Miss. Code Ann. § 41-29-147(Rev. 2013). Williams’s attorney

                                              5
asked:

         Q.   Okay. Now, let’s start with you haven’t been sentenced on your
              felonies yet, have you?

         A.   No, sir.

         Q.   And you said today -- what did you say you pled guilty to?

         A.   Possession of a firearm and transfer.

         Q.   Possession of a firearm and transfer?

         A.   Transfer.

         Q.   And that transfer was selling marijuana?

         A.   Yes.

         Q.   Okay. Now, on top of that, in addition to the sentence that you’re
              looking at for that, you also have prior convictions, right?

         A.   Yes.

         Q.   What are your prior convictions?

         A.   Possession of intent.

         Q.   Possession with intent, right, which do you understand they could
              double the maximum sentence?

At this point, the State objected, and the parties met at the bench.

         THE COURT:          You can talk about any deal that they made, but you’re
                             not going to go ahead and give a law lesson on what
                             his exposure is.

         THE DEFENSE:        I would like I believe that he’s entitled to see what he
                             has done. He’s working deals, and I want to show
                             what his exposure was and whether he was able to
                             work a deal.



                                              6
       THE COURT:           Well, he was facing -You can ask him about a deal, not
                            about what his legal exposure is. I’ve ruled.

Williams’s attorney still tried to get out the enhancement and asked:

       THE DEFENSE:         As part of your deal when you pled guilty, was it
                            agreed that your case would not be enhanced?

       THE STATE:           Objection, Your Honor. He’s trying to get the back
                            door the same argument.

       THE COURT:           Sustained. Go ahead and ask him, what was the deal?

       THE DEFENSE:         I would ask for an opportunity to make a record at a
                            later time on an issue.

       THE COURT:           You will.

Williams’s attorney went no further with this questioning.

¶12.   After the jury was retired, Williams’s attorney made his proffer by questioning

Atkinson further:

       THE DEFENSE:         Now, while he’s here, I would ask to proffer on the
                            sentence issue.

       Q.     With respect to a bargain, okay, you were facing -- pled guilty to two
              charges, right?

       A.     Yes.

       Q.     As part of your deal, what charges were dismissed and not
              prosecuted?

       A.     There was no deal.

       Q.     Were you not arrested for other things that were not prosecuted? Did
              you not have other pending charges where you got arrested for other
              things and when you plead guilty to these two things, that the other
              ones were just passed to the files?



                                             7
       A.    I don’t remember.

       Q.    Do you remember whenever you were working out this deal, do you
             remember whether or not your potential maximum sentence could be
             doubled because you had a prior drug case and this is another drug
             case?

       A.    No.

       Q.    You’re saying no, it cannot be doubled or enhanced?

       A.    Could you re-ask the question?

       Q.    Right. When you met with your attorney to work out your attorney
             presumably made the deal with the prosecutor, right? You didn’t talk
             to the prosecutor about the plea bargain, did you?

       A.    No.

       Q.    Okay. So when your attorney instructed you on what you could be
             facing if you were convicted, did your attorney tell you that the state
             had the ability to enhance your conviction, your drug case, to double
             it?

       A.    No, sir.

       Q.    And whether your attorney told you that or not, are you familiar
             enough that you know that by, having a prior drug case and getting
             another drug case, that the state could double your potential
             maximum sentence?

       A.    No, sir. I didn’t know that.

¶13.   On appeal Williams now claims that this line of cross-examination on the potential

enhancement of Atkinson’s sentence was improperly denied and that this denial prevented

him from presenting his defense, i.e., that Atkinson was not telling the truth and that

Williams’s involvement in the shooting was ancillary.

¶14.   An accused has the right to confront and cross-examine the witnesses against him.

                                            8
Ambrose v. State, 254 So. 3d 77, 101 (¶56) (Miss. 2018). A leniency/immunity agreement

may be presented to the jury which would tend to impeach or show bias of a witness. Barnes

v. State, 460 So. 2d 126, 131 (Miss. 1984). But a defendant’s right to cross-examination is

not unlimited, and the Confrontation Clause guarantees only an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way, and to whatever

extent, the defense might wish. Harris v. State, 242 So. 3d 181, 185 (¶10) (Miss. Ct. App.

2018).

¶15.     While this Court recognizes this important constitutional right, in Williams’s case the

cross-examination would have added nothing beneficial to the defense. In the proffer,

Atkinson denied knowing that he could have received twice the amount of time to serve.

Atkinson had already testified that he had charges pending to which the State had

recommended a reduced sentence from twelve years to three years. On cross-examination

Atkinson revealed that he specifically asked the police whether he could get help with his

current charges if he told them what he knew in this case. Thus, the jury had evidence that

Atkinson was getting leniency from the State on his current charges in exchange for his

testimony, which Williams’s attorney thoroughly probed for his client’s benefit. The trial

court did not limit Atkinson’s cross concerning this; it only limited questioning concerning

statutory provisions of enhancement, about which Atkinson knew nothing. This Court does

not find any error in the trial court’s limitation under these circumstances.

¶16.     Moreover, in order to establish an abuse of discretion, Williams must show clear

prejudice resulting from the trial court’s limitation of Atkinson’s cross. See Cage v. State,



                                                9
149 So. 3d 1038, 1044 (¶13) (Miss. 2014). This Court is not convinced that Williams was

prejudiced in the presentation of his case by the trial court’s ruling. The fact that Atkinson

would be receiving a reduced sentence in exchange for his testimony was clearly before the

jury for the defense to argue Atkinson’s motivation to lie. The excluded testimony would

have only shown that Atkinson was unaware of how good a deal he received and would add

nothing to the defense. We find no prejudice to the defense in the trial court’s limitation of

Atkinson’s cross-examination.1

       II.    Did the trial court err by not allowing Williams to call character
              witnesses?

¶17.   After denying the defense’s motion for a directed verdict, the trial court addressed the

parties outside the presence of the jury and asked Williams whether he had made a decision

on whether or not he would testify. Williams said he had had an opportunity to talk to his

attorney and he had decided not to testify. Thereafter there was the following exchange

between defense counsel and the trial court:

       THE COURT:           Okay. Y’all take a seat. All right. We’ll take a short
                            recess. Get your witness here. We’ll get started.



       1
          Even if the exclusion of this testimony amounted to a violation of Williams’s
constitutional confrontation right, this violation was harmless error. In Smith v. State, 986
So. 2d 290, 302 (¶37) (Miss. 2008), an admission by a co-defendant of his implication in a
crime was excluded. After concluding that this may have been a constitutional violation,
our Supreme Court found that the violation was harmless because this information had
already been presented from the defendant himself without contradiction. Id. at 301 (¶36).
Similarly, here Atkinson admitted that he had asked law enforcement if talking about the
incident would help him on his other charges. The jury was also told that the State
recommended a lower sentence on Atkinson’s pending charges, obviously in exchange for
his cooperation. Most importantly, the proffer showed that Atkinson would not have been
able to testify to the years of enhancement anyway.

                                             10
        THE DEFENSE:         I need to address that issue. Without the defendant
                             testifying, my witnesses, the only witness I’m going to
                             bring in would be character witnesses. And by the
                             defendant not testifying, I think that the state may try to
                             object to me putting in character testimony. But the
                             character, I would submit that even though the defendant
                             didn't testify, it would nonetheless be admissible.

        THE COURT:           His character’s not at issue if he doesn't testify. That’s
                             the law.

        THE DEFENSE:         That's what I anticipated that they would say, but I would
                             submit that the defendant did testify by way of his
                             statement.

        THE COURT:           Well --

        MR. CROSBY:          So if that’s your ruling, I wanted to make sure that was–

        THE COURT:           That is the law, and we’re going to follow it as best we
                             can.

        MR. CROSBY:          Then in that event, we’re not going to produce any
                             evidence.

        THE COURT:           So you’re going to rest?

        MR. CROSBY:          Yes, sir.

On appeal, Williams argues that the trial court erred in precluding the testimony of his

character witness(es).

¶18.    Mississippi Rule of Evidence 404 deals with character evidence, crimes or other acts.

It states:

        (a)    Character Evidence.

               (1)    Prohibited Uses. Evidence of a person’s character or character
                      trait is not admissible to prove that on a particular occasion the
                      person acted in accordance with the character or trait.

                                              11
              (2)    Exceptions for a Defendant or Victim in a Criminal Case. The
                     following exceptions apply in a criminal case:

                     (A)     a defendant may offer evidence of the defendant’s
                             pertinent trait, and if the evidence is admitted, the
                             prosecutor may offer evidence to rebut it;

                     (B)     a defendant may offer evidence of an alleged victim’s
                             pertinent trait, and if the evidence is admitted, the
                             prosecutor may offer evidence to rebut it; and

                     (C)     the prosecutor may offer evidence of the alleged victim’s
                             trait of peacefulness to rebut evidence that the victim was
                             the first aggressor.

Williams contends that the trial court erred when it prohibited him from calling a character

witness. However, Williams made no proffer of who that character witness was or what that

witness would have said. When a trial court prevents the introduction of certain evidence,

it is incumbent on the offering party to make a proffer of the potential testimony of the

witness, or the point is waived for appellate review. Redhead v. Entergy Miss. Inc., 828 So.

2d 801, 808 (¶20) (Miss. Ct. App. 2002). We said in Redhead:

       To preserve the excluded testimony for appeal, a proffer would have to have
       been made so this Court would know what testimony was excluded. Since this
       matter was not properly preserved for appeal, then this issue will be treated as
       waived.

Id. This applies in criminal cases as well. See Turner v. State, 732 So. 2d 937, 951 (¶55)

(Miss. 1999) (“When a trial court rules so as to prevent certain testimony from being

introduced, it is incumbent on the party to make a proffer of what the witness would have

testified to or the point is waived for appellate review.”). We have underscored the need for

a proffer in several recent cases, saying:

                                              12
       Generally, when a party seeks to offer evidence which in turn is excluded by
       the trial court, before we will consider the matter on appeal the party must
       have somehow placed in the record the nature and substance of the proffered
       evidence for our consideration. When testimony is excluded at trial, a record
       must be made of the proffered testimony in order to preserve the point for
       appeal.

Harrell v. State, 179 So. 3d 16, 21 (¶15) (Miss. Ct. App. 2014). Without the proffer of what

this character witness would have said, it is impossible for this Court to find error in the trial

court’s ruling.

¶19.   We agree with the concurrence that under Rule 404, a criminal defendant is not

required to testify prior to offering “character evidence.” However, it should be noted the

“character evidence” that could be allowed would only be evidence “to prove that on a

particular occasion the person acted in accordance with the character or trait.” As illustrated

in the comment to Rule 404, if a defendant claims that the victim was the initial aggressor

and the defendant’s actions were in the nature of self-defense, he may put in evidence of the

victim’s violent character—but only after the defendant had offered evidence of an overt act

perpetrated against him by the victim. Rule 404 does not give criminal defendants carte

blanche to offer evidence of “truthfulness” or “peacefulness.” Rather, the character evidence

must be presented to show that on a particular occasion, the defendant or victim acted in

accordance with a particular trait he has. Again, without a proffer of the nature of the

character evidence, we cannot conclude that the trial court erred in excluding it.

                                        CONCLUSION

¶20.   Finding no abuse of discretion, arbitrariness, or other error by the trial court, we

hereby affirm.

                                               13
¶21.   AFFIRMED.

     BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, TINDELL, LAWRENCE AND C. WILSON, JJ., CONCUR.
McCARTY, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION,
JOINED BY WESTBROOKS, TINDELL AND LAWRENCE, JJ.

       McCARTY, J., SPECIALLY CONCURRING:

¶22.   While I agree that without a proffer we cannot know what character evidence the

defendant wished to place into evidence, and therefore cannot reverse, I write separately to

emphasize that the Rules of Evidence do not require a defendant to testify before introducing

Rule 404(a) evidence. There is nothing in the plain language of the Rule that requires this,

and if there were, it would place the Rules in an insurmountable tension with our

Constitution. The trial court’s ruling that Williams could not introduce evidence of character,

coupled with the denial of a more extensive cross-examination, compels me to write

separately.

¶23.   Our Constitution mandates that a defendant “shall not be compelled to give evidence

against himself . . . .” Miss. Const. art. 3, § 26. Therefore a defendant does not have to

testify during a trial, as the defendant in this case did not. Even if a person did testify, the

person’s statements and other evidence are still subject to admission by the trial court. See

M.R.E. 104 (preliminary questions of admissibility are for the trial court).

¶24.   In general, “Evidence of a person’s character or character trait is not admissible to

prove that on a particular occasion the person acted in accordance with the character or trait.”

M.R.E. 404(a)(1). This is for the most part a complete bar to the admission of this type of

evidence in a civil case. See Alpha Gulf Coast Inc. v. Jackson, 801 So. 2d 709, 730 (¶77)

                                              14
(Miss. 2001) (“This Court has held that in civil cases, generally, a party may not support its

position with testimony concerning good character or reputation.”). Yet even in civil cases,

“[w]hen good character and reputation are in issue . . . such as in a false imprisonment case,

the evidence is admissible.” Id.

¶25.   There is a specific and express exception for defendants in criminal cases to the ban

on character evidence. “[A] defendant may offer evidence of the defendant’s pertinent trait,

and if the evidence is admitted, the prosecutor may offer evidence to rebut it.” M.R.E.

404(a)(2)(A). The express exception still has permissive language, indicating that the

evidence is still subject to admission under the trial court’s wide discretion.

¶26.   Indeed, the plain language of Rule 404 even sets out how the procedure will work.

If a defendant brings in evidence, then the prosecutor has the ability to rebut it if she so

chooses. This is a simple procedure that recognizes the extraordinarily high stakes of a

criminal trial – not the loss of money or property through a damages award, but the loss of

liberty through a guilty verdict.

¶27.   The Supreme Court explained this procedure in 1993, noting that “[t]his Rule flatly

prohibits the use of character evidence of a defendant to show he acted in conformity

therewith on a particular occasion, unless (1) such evidence is offered by the defendant or

(2) the defendant takes the witness stand.” Hopkins v. State, 639 So. 2d 1247, 1251 (Miss.

1993). As Rule 404(a) and the Hopkins Court make clear, there is no requirement that the

defendant him or herself testify before they may offer character evidence. Offering character

evidence through a witness is sufficient.



                                             15
¶28.   There is nothing that requires that the defendant waive his or her right to not give

testimony under our Constitution. Even if that were the law, which it is not, any concern of

lack of testimony would have been greatly alleviated by the admission of the 164-page

interrogation of the defendant, which provided a de facto testimony for the jury to assess.

¶29.   The refusal to allow the defendant to produce witnesses was coupled with a restraint

on cross-examination. “The right to cross-examine a witness has been held to be a valuable

and highly protected right.” Holliday v. State, 758 So. 2d 1078, 1082 (¶12) (Miss. Ct. App.

2000). “The right of cross-examination has been limited only to clear cases of irrelevancy,

trespass beyond admissible grounds, or extremes of continual aimless repetition.” Id.

¶30.   In the trial giving rise to this appeal, defense counsel sought to deeply cross-examine

a witness who had blatantly admitted that he was trying to curry favor with law enforcement

in exchange for leniency. When asked, “You were trying to tell the officers things that you

thought would help you get them to help you get out of your trouble, right?” the witness

replied, “Yes.” Cross-examination is made for just such a person. While it may not have

been reversible error under the facts of this particular case, I believe that cross-examination

should rarely be restrained.

       WESTBROOKS, TINDELL AND LAWRENCE, JJ., JOIN THIS OPINION.




                                              16
