                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2008-CT-00958-SCT

HAROLD DONELL HARGETT a/k/a JUNIOR

v.

STATE OF MISSISSIPPI

                              ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                          03/14/2008
TRIAL JUDGE:                               HON. MICHAEL M. TAYLOR
COURT FROM WHICH APPEALED:                 PIKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    HAROLD DONELL HARGETT (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                         DEE BATES
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               REVERSED AND REMANDED - 05/26/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       CHANDLER, JUSTICE, FOR THE COURT:

¶1.    Harold Hargett was indicted by a Pike County grand jury for the sale of less than

thirty grams of marijuana and the sale of ten dosage units of hydrocodone in violation of

Mississippi Code Section 41-29-139. A jury found Hargett guilty on both charges, and he

was sentenced as a habitual offender to six years for the sale of marijuana and sixty years for

the sale of hydrocodone. These sentences were set to run concurrently in the custody of the

Mississippi Department of Corrections (MDOC). The Court of Appeals affirmed Hargett’s
conviction and sentence. Hargett v. State, 2010 WL 3467174, at *1 (Miss. Ct. App. Sept.

7, 2010).

¶2.     This Court granted Hargett’s petition for certiorari to consider whether admitted

testimony referencing Hargett’s prior bad acts should have been excluded. We limit our

discussion to this issue. We reverse the decisions of the Court of Appeals and the Pike

County Circuit Court and remand for a new trial, finding testimony referencing prior bad acts

should have been excluded, as it does not fit an exception under Rule of Evidence 404(b) and

is overly prejudicial under Rule 403.

                                           FACTS

¶3.     Gabe Brumfield (Brumfield) and his wife Carla Brumfield (Carla), confidential

informants, contacted the Mississippi Bureau of Narcotics (MBN) and arranged to purchase

drugs from Hargett. Brumfield assured MBN Agents Chad Griffin and Sheldon Jolliff that

he had spoken to Hargett and was confident Hargett would sell marijuana and hydrocodone

to him. After speaking with the MBN agents and arranging the location of the potential drug

sale, 1124 Wittimer Street in McComb, Mississippi, Brumfield went to Hargett’s house

wearing an audio monitoring device. Brumfield made the purchase and identified Hargett

as the one who had sold him the drugs. The MBN agents were located about one block away

from the drug sale, and although they were able to hear the transaction through the audio

recording device attached to Brumfield, they were unable to see the transaction.

¶4.    Before trial began, Hargett’s counsel argued a motion in limine to exclude evidence

of Hargett’s prior convictions, as the prejudice would outweigh any probative value. The trial

judge granted the motion, precluding the State from introducing evidence of Hargett’s prior

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drug convictions, and instructing the State to consult the bench before introducing testimony

referencing these prior convictions or bad acts. Despite the ruling on the motion in limine,

the State continually elicited inadmissible testimony.

¶5.      Early in the trial, after being asked how many times MBN agents had bought drugs

at 1124 Wittimer Street, Agent Griffin stated, “This particular case number is the second case

on Harold.” A bench conference followed this testimony, and the trial judge sustained a

continuing objection to testimony referencing prior convictions or bad acts. The trial judge

instructed the State, “Just don’t go there.” But later, when asked about prior drug purchases

from 1124 Wittimer Street, Agent Griffin stated, “I was the case agent on a case with Harold

Hargett’s brother, Joe Nathan Brumfield.” 1 Another bench conference was held after this

improper use of Hargett’s name in connection with his brother’s prior bad acts. The trial

judge told the State, “No names, no names.”

¶6.    After the State was instructed not to refer to Hargett in connection with prior bad acts

or convictions, and after two bench conferences instructing the prosecutor to avoid reference

to Hargett’s prior bad acts or convictions, Brumfield was asked how he knew Hargett.

Brumfield’s response was, “because I have bought pills and marijuana from him before.”

Brumfield then clarified he also knew Hargett because he worked with him. When Carla was

asked how she knew Hargett, Carla stated that she lived a block from Hargett. She then

unnecessarily added, “the first time I met him was when me and my husband went up there




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             It is merely coincidental that Hargett’s brother and the CI have the same last
 name.

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to buy drugs from him.” In total, four improper, prejudicial exchanges took place in trial

referencing Hargett in connection with a prior bad act or conviction.

                                 STANDARD OF REVIEW

¶7.    Admission or exclusion of evidence will be viewed on an abuse-of-discretion standard.

Jones v. State, 904 So. 2d 149, 152 (Miss. 2005). “A trial judge enjoys a great deal of

discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this

discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Price

v. State, 898 So. 2d 641, 653 (Miss. 2005) (citing Walker v. State, 878 So. 2d 913, 915 (Miss.

2004) (quoting Jefferson v. State, 818 So. 2d 1099, 1104 (Miss. 2002))). “Where error

involves the admission or exclusion of evidence, this Court will not reverse unless the error

adversely affects a substantial right of a party.” Ladnier v. State, 878 So. 2d 926, 933 (Miss.

2004) (quoting Whitten v. Cox, 799 So. 2d 1, 13 (Miss. 2000) (citing Floyd v. City of Crystal

Springs, 749 So. 2d 110, 113 (Miss. 1999))).

                                        DISCUSSION

I. Prior Acts

¶8.    Although a judge has broad discretion in admitting evidence, evidence of a crime other

than the one for which the accused is being tried generally will not be admissible. Ballenger

v. State, 667 So. 2d 1242, 1246 (Miss. 1995) (citing Duplantis v. State, 644 So. 2d 1235, 1246

(Miss. 1994); Ladner v. State, 584 So. 2d 743, 758 (Miss. 1991), cert. denied, 502 U.S. 1015,

112 S. Ct. 663, 116 L. Ed. 2d 754 (Miss. 1991), Rose v. State, 556 So. 2d 728 (Miss. 1990)).

Evidence of prior bad acts or convictions will be admissible if it meets the criteria set forth in

our evidentiary rules.

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       Evidence of other crimes, wrongs or acts is not admissible to prove the character
       of a person in order to show that he acted in conformity therewith. It may,
       however, be admissible for other purposes such as proof of motive, opportunity,
       intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

M.R.E. 404(b). Testimony will be excluded under Rule 403 if it is overly prejudicial.

       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. In essence, the risk of undue prejudice must not substantially outweigh its

probative value. Ballenger, 667 So. 2d at 1257. In the case sub judice, the testimony fits no

exception under Rule 404(b) and is overly prejudicial under Rule 403.

¶9.    The Court of Appeals states that “each questioned instance falls squarely within the

exception provided in M.R.E. 404(b). Hargett v. State, 2010 WL 3467174, at *2. But, the

court failed to explain how any exception applies. At trial, the State argued it would be

offering evidence of Hargett’s prior drug convictions to prove there was no mistaken identity.

But the defense never alleged mistaken identity. As the trial judge stated, “The theory of the

case can’t be we know he’s a drug dealer . . . unless he alleges a mistake, there is no reason to

prove absence of mistake.”

¶10.   The Court of Appeals found the elicited testimony was necessary to tell the complete

story. Evidence of other crimes may be admissible to tell the complete story, so the jury will

not be confused. Palmer v. State, 939 So. 2d 792, 795 (Miss. 2006). But, in this case, the

elicited testimony was excessive and unnecessary.

¶11.   Carla first stated she knew Hargett because he lived down the street from her. She then

unnecessarily explained she had met Hargett while buying drugs. When Agent Griffin was

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asked how many times he had bought drugs at this specific location, he unnecessarily answered

the number of times he had bought drugs from Hargett. When discussing a prior case on

Hargett’s brother, it was not necessary to refer to Hargett as though he was connected to his

brother’s prior drug sale.

¶12.   In Ballenger, this Court allowed testimony to “complete the story,” because the

evidence was “an integral part of the story surrounding Ellis’s death.” Ballenger, 667 So. 2d

at 1257. This Court stated, “It shows that Ballenger had the intent that Ellis be killed . . . . It

shows Ballenger’s plan to cover up the robbery . . . it identifies Ballenger as a participant.”

Id. But this Court also noted, “This is not an instance where a jury hears about another similar

crime which would likely cause them to find guilt because she had done it before. [sic] The

prejudicial effect of this testimony did not outweigh its probative value.” Id. Here, the exact

type of impermissible testimony contemplated by the Ballenger Court was admitted. The jury

heard about a similar crime, “which would likely cause them to find guilt.” Id.

¶13.   As previously noted, a trial judge has broad discretion in admitting testimony. But this

discretion is subject to some limits.

       Vigorous prosecution does not require, and fairness does not permit, that one
       charged with an offense in this area be loaded with prejudicial irrelevancies.
       The commendable zeal of the District Attorney to convict those he believes
       guilty must never be allowed to blind either him or the courts to the necessity of
       affording every man a fair trial.

Sumrall v. State, 272 So. 2d 917, 919 (Miss. 1973).

II. Harmless Error

¶14.   As previously noted, a “substantial right of a party” must be affected to order reversal.

The prejudicial testimony, continually admitted throughout trial, affected Hargett’s

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constitutional right to a fair trial. This Court will “deem harmless an error where ‘the same

result would have been reached had [it] not existed.’” Pitchford v. State, 45 So. 3d 216, 235

(Miss. 2010) (citing Tate v. State, 912 So. 2d 919, 926 (Miss. 2005) (quoting Burnside v.

State, 882 So. 2d 212, 216 (Miss. 2004)). The testimony that Hargett had sold drugs to the

informant would not have had the same persuasive effect without testimony that he had

previously sold drugs. Certainly it cannot be determined that a guilty verdict would have been

reached without testimony of Hargett’s prior convictions.

¶15.   In Robinson v. State, this Court reversed the decision of the Court of Appeals, finding

prior-bad-acts testimony was admitted improperly at trial. Robinson v. State, 35 So. 3d 501,

507 (Miss. 2010). Quoting the Court of Appeals’ dissent, this Court stated, “before Robinson

uttered the first word in his defense, the State had introduced the improper prior-bad-acts

evidence, and the damage had been done.” Id. (citing Robinson v. State, 35 So. 3d 524, 535

(Miss Ct. App. 2009) (King, C.J., dissenting)). This Court further stated:

       Not only had the damage been done with respect to the jury being presented with
       inadmissible, prejudicial evidence, but also, Robinson’s constitutional right to
       testify (or refrain therefrom) had been compromised . . . based upon the
       admission of this evidence, Robinson was presented with the options of either
       taking the witness stand in an attempt to mitigate the prejudice caused, or
       foregoing that right and permitting the jury’s consideration of such evidence
       without response.

Robinson, 35 So. 3d at 507.

¶16.   In this case, the jury heard continual references to Hargett’s prior convictions before he

had any opportunity to present a defense. The improperly admitted evidence is overly

prejudicial and meets no exception under Rule 404(b), which results in reversible error. For




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these reasons, we reverse the decisions of the Court of Appeals and the Pike County Circuit

Court, and remand for a new trial.

¶17.   REVERSED AND REMANDED.

   WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR,
KITCHENS AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.




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