                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2017-KA-00719-SCT

ROGER LEE JACKSON a/k/a ROGER JACKSON
a/k/a ROGER L. JACKSON

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         05/05/2017
TRIAL JUDGE:                              HON. JEFF WEILL, SR.
TRIAL COURT ATTORNEYS:                    GREG RICHARD SPORE
                                          MICHELE PURVIS HARRIS
                                          MICHAEL ERIC BROWN
                                          ESEOSA GWENDLINE AGHO
                                          JACK BRADLEY McCULLOUCH
COURT FROM WHICH APPEALED:                HINDS 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: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY:                        ROBERT SHULER SMITH
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 06/14/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE KITCHENS, P.J., BEAM AND CHAMBERLIN, JJ.

       BEAM, JUSTICE, FOR THE COURT:

¶1.    Roger Lee Jackson appeals from his convictions for aggravated assault and felon in

possession of a firearm after a jury trial in Hinds County Circuit Court. The jury acquitted

Jackson of deliberate-design murder, which was charged in the same indictment. Jackson
claims the trial court committed reversible error by: (1) limiting defense counsel’s cross-

examination of State’s witnesses; and (2) limiting defense counsel’s closing argument about

reasonable doubt. Finding no reversible error, we affirm Jackson’s convictions.

                                          FACTS

¶2.    In the early morning hours on November 11, 2014, two men were shot near Roach

Street in Jackson, Mississippi. One of the victims, Quincy McGowan, died. His body was

discovered in a nearby vacant lot by a passerby shortly after noon on November 11. Police

found ten 9 mm shell casings near the body, and a 9 mm projectile was recovered from

McGowan’s body during autopsy.

¶3.    The other victim, Emmanuel Jones, survived after being shot five times–once in the

face, three times in the torso, and once in the foot. Doctors retrieved a .22 caliber projectile

from Jones’s body during treatment at a nearby hospital.

¶4.    Jones testified at Jackson’s trial. According to Jones, he and Jackson were riding

around in Jackson’s vehicle looking to buy some drugs on the night of the shooting. At some

point, Jones and Jackson encountered Jerry Lewis driving another vehicle, with two males

riding as passengers. Jones and Jackson followed Lewis to the vicinity of Roach Street and

Farrish Street, where they parked the vehicles in a vacant lot.

¶5.    Jackson and Lewis got out of their vehicles and started talking. The two then began

to argue. Jones said he heard Jackson tell one of the other individuals riding with Lewis to

get out of the vehicle. Jones said he heard a gunshot, and he saw Jackson shoot McGowan.




                                               2
Jackson then came back to his vehicle and walked over to the passenger side where Jones

was sitting, and began shooting Jones.

¶6.    Jones got out of the vehicle and ran to a nearby house, banged on the door, and

collapsed on the porch. The home’s occupant called 911.

¶7.    A couple of weeks after the shooting, Jones identified Jackson from a photo lineup

as the person who had shot him. Jones told the jury he believed Jackson had shot him (Jones)

because Jackson did not want any witnesses.

¶8.    On cross-examination, Jones admitted he was a prior-convicted felon and was on

probation at the time of the shooting. Jones said he was not allowed to own or possess a

firearm. Jones said he did not own a gun, and was not in possession of one at the time of the

shootings.

¶9.    Jones’s sister, Jerminda Myers, testified on behalf of the State. Myers said, soon after

the shooting, she talked to Jones at the hospital about what had happened. Myers, who had

once dated Jackson, said she had received a phone call from Jackson shortly after she talked

to Jones at the hospital. Jackson said he heard Jones had been shot. According to Myers,

Jackson was questioning her about Jones’s condition and trying to find out if Jones was able

to talk. Myers said she “played along” and told Jackson Jones “was in critical condition.”

Myers said “it wasn’t true.” Jones was not in critical condition, and she had talked to Jones

and Jones had told her who shot him. Myers said when Jackson said to her, “Ain’t no telling

who did it[,]” she “almost bit [her tongue] off.”




                                              3
¶10.   Myers said she received another phone call from Jackson a day later, asking if she still

lived in the same apartment. And Jackson asked if Myers’s mother still lived in the same

location. Myers said she responded to Jackson: “I asked him did his mom stay in the same

spot she lived in.”

¶11.   Detective Rozerrio Camel of the Jackson Police Department testified on behalf of the

State and the defense. Detective Camel investigated the scene where McGowan’s body was

found on November 11.

¶12.   Detective Camel said Jackson developed as a suspect in the case during his

investigation. And Detective Camel said he received a telephone call from an individual

named Michael Davis, saying he had some information concerning the death of McGowan.

¶13.   Davis testified at trial that McGowan was his best friend, whom he had known since

the fourth grade. When Davis learned McGowan had been killed, Davis began asking

around trying to found out who had killed him. Davis said when he spoke to Jackson,

Jackson had admitted killing McGowan. According to Davis, Jackson stated: “Okay. I did

it. Now what are you going to do?”

¶14.   Davis thereafter spoke to Detective Camel and told him that Jackson had said he had

killed McGowan. Detective Camel showed Davis a photograph lineup, from which Davis

identified Jackson. Davis also identified Jackson in the courtroom as the person who had

told him that he had killed McGowan.




                                              4
¶15.    On cross-examination, Davis testified that he had a subsequent conversation with

Jackson in which Jackson said that Lewis also was involved, along with someone named

“Tope.”

¶16.    During the defense’s case-in-chief, the defense called two witnesses: Detective Camel

and Tommy Bishop, a firearms examiner at the Mississippi Crime Laboratory. Jackson did

not testify.

¶17.    The defense first asked Detective Camel about items that were found at the crime

scene and what, if any, forensic tests were conducted on those items. Detective Camel said

he had turned over all the items recovered to the Mississippi Crime Lab. The defense also

asked Detective Camel whether any DNA samples were collected from Jones, or from

anyone else in connection with the shootings. Detective Camel said no DNA samples were

collected from anyone.

¶18.    Lastly, the defense asked Detective Camel whether he had interviewed Lewis during

the course of his investigation. Detective Camel said he had interviewed Lewis, and Lewis

was considered a potential suspect. But according to Detective Camel, they did not have

enough evidence linking him to the shooting(s). Detective Camel said “nobody came to me

and told me that they saw [Lewis] shoot [anyone].” When the defense asked Detective

Camel whether Lewis was dismissed as a potential suspect, Detective Camel said: “I never

did dismiss him. I just didn’t have enough to make an arrest. Like I said, I did interview

him.”




                                              5
¶19.      Bishop testified that he had examined one of the bullet projectiles recovered from

Jones’s body. Bishop said he was positive it was “a .22-caliber[,]” and not a “nine-

millimeter.” Based on a question asked by the defense, Bishop said the report he received

in the case listed two suspects, “Roger Jackson and Jerry Lewis.”

¶20.      After the case was submitted to the jury, Jackson was found guilty of aggravated

assault and felon in possession of a firearm. The jury acquitted Jackson of deliberate-design

murder. This appeal followed. Additional facts will be related in the discussion of the

issues.

                                       DISCUSSION

          I.     Whether the trial court erred in limiting Jackson’s cross-
                 examination of the State’s witnesses.

¶21.      Jackson claims his defense strategy at trial was to impeach Jones and shift the blame

for both shootings to Lewis. According to Jackson, at several key points during cross-

examination of state witnesses, the State interrupted Jackson’s efforts to establish evidence

in support of his defense with various objections that were sustained by the trial court.

Jackson contends this violated his federal and state constitutional rights to confront witnesses

against him. See U.S. Const. amends. V, VI; Miss. Const. art. 3, § 26 (1890).

¶22.      First, according to Jackson, after Jones testified that Lewis and Jackson were arguing,

defense counsel asked Jones if he had reported to the police that during the argument, Lewis

had expressed angry remarks about Lewis’s residence being “shot up.” The State objected

on the basis that the question was “improper,” and the trial court sustained without stating

the basis, telling the jury to disregard the question and the answer elicited.


                                                 6
¶23.   Jackson contends that, since the fact Jackson and Lewis had been arguing had been

established, the subject of the argument was relevant and probative under Mississippi Rules

of Evidence 401, 403, and 613. Jackson argues that the question did not call for a hearsay

response, because what was asked was not to establish the truth of the matter asserted, but

rather to establish that Lewis was angry. See M.R.E. 801(c). And Jackson submits that, even

if it was hearsay, two exceptions to the rule applied, those for excited utterances and a

present-sense impression, under Rules 803(1) and (2), because Lewis was involved in an

argument.

¶24.   Jackson next argues that, during Detective Camel’s cross-examination, defense

counsel was in the process of laying a foundation that something Jones purportedly said to

the police gave indication that Lewis may have shot Jones and McGowan. The State

objected and the trial court sustained, finding the question called for speculation.

¶25.   According to Jackson, since it was known two different calibers of ammunition were

used in the shootings, it was reasonable to conclude there may have been two shooters.

Therefore, the jury was entitled to know what Jones said, if anything, about Lewis firing any

weapons.

¶26.   Lastly, on this issue, Jackson claims that another damaging limitation of his right to

confrontation occurred when defense counsel “began to press” Davis on exactly what

Jackson had said to him about Lewis’s involvement. The State objected to hearsay, and the

trial court sustained, finding that testimony about what Jackson had told Davis about Lewis’s

involvement was inadmissible, self-serving hearsay.



                                              7
¶27.   Jackson argues that, since he (Jackson) allegedly admitted to Davis that he had shot

McGowan, his (Jackson’s) alleged remarks about Lewis’s involvement were not self-serving

and were admissible. Jackson contends the entire conversation between Davis and himself

was admissible under a defendant’s right to have his entire statement considered when

offered by the State, including any self-serving portions. Jackson relies on Sanders v. State,

237 Miss. 772, 115 So. 2d 145, 146-47 (1959), in which this Court held that, in regard to

confessions: “[T]he whole of what the accused said on the subject at the time of making the

confession should be taken together. The prosecution is entitled to show the whole

statement, or if any part is omitted, the accused is entitled to supply it.” Further, “the accused

is entitled to have the entire conversation including any exculpatory or self-serving

declarations connected therewith, also admitted.” Id. at 147.

¶28.   Jackson maintains that Mississippi long has followed the wide-open cross-

examination codified in Rule of Evidence 611(b). And the trial court violated this rule by

limiting Jackson’s cross-examination, which irreparably prejudiced Jackson’s attempt to

present a defense and violated his constitutional right to confront key witnesses.

¶29.   Jackson claims he also was prejudiced by not being allowed to present evidence in

support of his defense, namely, that Lewis shot McGowan and Jones. Citing Terry v. State,

718 So. 2d 1115 (Miss. 1998), and Keys v. State, 635 So. 2d 845 (Miss. 1994), Jackson

points out that this Court steadfastly has held that a “criminal defendant is entitled to present

his defense to the finder of fact, and it is fundamentally unfair to deny the jury the




                                                8
opportunity to consider the defendant’s defense where there is testimony to support the

theory.” Terry, 718 So. 2d at 1121.

¶30.   Jackson urges application of the principles that guided this Court in Terry, in which

the defendant was charged with embezzling money from her employer. Id. at 1120-21. In

Terry, the defendant sought to present evidence that other people, including the business

owners, were possible suspects, but the trial court prevented her from doing so. Reversing

the trial court judgment, this Court held that “when an accused is being tried for a serious

offense, the jury is entitled to hear any testimony that the [defendant] may have in the way

of an alibi or defense.” Id. at 1123.

¶31.   Here, we find no reversible error in any of Jackson’s claims. We will discuss each

separately.

¶32.   Our standard of review regarding the admission or exclusion of evidence is abuse of

discretion. Brown v. State, 965 So. 2d 1023, 1026 (Miss. 2007). “For a case to be reversed

on the admission or exclusion of evidence, it must result in prejudice and harm or adversely

affect a substantial right of a party.” Pham v. State, 716 So. 2d 1100, 1102 (Miss. 1998).

       Jones

¶33.   The defense sought to impeach Jones with prior, inconsistent, out-of-court statements

that the defense contends Jones made to Detective Camel during his investigation in the case.

The defense also sought to obtain evidence from Jones in support of its theory in the case that

Lewis, not Jackson, may have been the shooter of both victims.




                                              9
¶34.   According to the record, after defense counsel asked Jones about his trial testimony

regarding the three men in the other vehicle, and about Jones being able to identify only

Lewis from the other vehicle, the following exchange took place.

       Q.     Thank you. Now, [Jackson] and Jerry Lewis, “Puppy,” were arguing
              over something for about ten or 15 minutes, right?

       A.     Yes, sir.

       Q.     They were arguing for about ten or 15 minutes?

       A.     Yes.

       Q.     Okay. And at some point during this five, ten-minute argument,
              conversation, Mr. Lewis said, “that m*****f***** had something to
              do with this,” Mr. Lewis’s, “residence being shot up,” correct?

       A.     Yes, sir.

       Q.     Okay.

¶35.   At that point, the State interrupted and asked to approach the bench. During the bench

conference, the State claimed this line of questioning was improper on the ground it

constituted hearsay. The trial court asked the defense for a response, to which defense

counsel said there was no contemporaneous objection by the State. The trial court

responded: “Well, the objection has been made. And do you have a response to it?” The

defense replied, “No.” The trial court then sustained the State’s objection and told the jury

to disregard the witness’s last comment.

¶36.   We find no error in the trial court’s ruling. Jackson is correct that a defendant in a

criminal trial has a fundamental right, implicit in the Confrontation Clauses of our federal

and state constitutions, to cross-examine the witnesses testifying against the defendant. U.S.

                                             10
Const. amends. V, VI; Miss. Const. art. 3, § 26 (1890). The right, however, is not

unbounded. Foster v. State, 508 So. 2d 1111, 1114 (Miss. 1987), overruled on other

grounds by Powell v. State, 806 So. 2d 1069 (Miss. 2001). “Its contours are shaped so as

to accom[m]odate other legitimate interests[]; and it is always subject to the trial court’s

inherent power to limit cross-examination to relevant factual issues.” Id. (citing Chambers

v. Mississippi, 410 U.S. 284, 93 S. Ct. 1083, 35 L. Ed. 2d 297 (1973), and Johnston v. State,

376 So. 2d 1343 (Miss. 1979)); see also Delaware v. Van Arsdall, 475 U.S. 673, 679, 106

S. Ct. 1431, 89 L. Ed. 2d 674 (1986) (“[T]he Confrontation Clause guarantees an opportunity

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

to whatever extent, the defense might wish.”).

¶37.   Ultimately, determining whether the trial court abused its discretion in limiting cross-

examination necessitates “careful reflection upon the nature and purpose of the question

propounded.” Black v. State, 506 So. 2d 264, 267 (Miss. 1987). And this Court has held

that “[o]ne is deprived of the right to cross-examine when the trial court fundamentally and

substantially restricts it[,]” and the court does so through no fault of the cross-examiner.

Culp v. State, 933 So. 2d 264, 276 (Miss. 2005) (citing Myers v. State, 296 So. 2d 695, 701

(Miss. 1974)).

¶38.   Here, the trial court invited defense counsel to respond to the State’s objection that

Lewis’s alleged statement prior to the shootings about Lewis’s “residence being shot up”

constituted hearsay. But defense counsel had no response. Accordingly, the defense failed

to preserve error, if any, on the trial court’s ruling.



                                               11
¶39.   This Court repeatedly has held that the trial court cannot be put in error for something

upon which it had no opportunity to pass. Patterson v. State, 594 So. 2d 606, 609 (Miss.

1992). Now on appeal, Jackson argues for the first time that the question did not call for a

hearsay response because what was asked was not to establish the truth of the matter of

asserted, but rather to establish that Lewis was angry. This argument, however, was never

presented to the trial court and thus is barred from consideration on appeal. Id. at 609.

       Detective Camel

¶40.   The record shows the following exchanges occurred during the defense’s cross-

examination of Detective Camel:

       Q.     All right. Now, you further learned that [Jones] believes [Jackson] shot
              [him, Jones], correct?

       A.     I can’t answer that. I can basically answer what he told me. When I
              talked to [Jones], [Jones] told me that [Jackson] was the person that
              shot him.

       Q.     Okay.

       A.     [Jones] didn’t say he believed. [Jones] said [Jackson] was the person
              that shot him.

       Q.     Okay. But you then learned that [Jones] might have been shot
              unintentionally, correct?

       A.     I can’t answer that. I wasn’t there when that was stated.

¶41.   At this point, the State objected and a bench conference ensued. The State contended

the defense was attempting to mislead the jury. The trial court then asked defense counsel,

“what’s your good faith basis for that?” Defense counsel replied, “Everything I’ve said

comes from the police reports.” The trial court said, “Well, if the question is he might have


                                             12
been shot accidentally, doesn’t that call for speculation?” Defense counsel replied that he

was simply asking Detective Camel “what he learned as the investigation proceeded[,]” and

“was not asking him to state it as a matter of truth.” Defense counsel argued that Mississippi

caselaw says that “out-of-court statements to the police as they relate to what the police did

in their police investigation are not hearsay.” The trial court responded: “Oh. So the

statement that you were attempting to suppress a few moments ago of this witness would –

fit that very category, then, right?” Defense counsel replied: “No, sir, it doesn’t, because

there’s a Confrontation clause issue with respect to Michael Davis.” The trial court then

sustained the State’s objection, stating: “I’m going to sustain the objection. I think we’re

getting pretty far afield. So please continue.”

¶42.   Defense counsel proceeded:

       Q.     Now, you learned during the course of your investigation that Jerry
              Lewis, “Puppy,” was possibly involved in the shooting of [Jones],
              correct?

       A.     I learned that he was there.

       ...

       Q.     And you further learned that Puppy . . . might have shot [Jones,]
              correct?

¶43.   The State objected and another bench conference ensued. The State objected to any

mention that “Puppy” was the shooter or possible shooter in this investigation. Defense

counsel responded: “I’m taking it all from the police reports, Your Honor, the discovery

provided to me and narratives and all the incident reports. I’m taking this right from that, and

I’m just building through the investigation. That’s all I’m doing.” The trial court responded:

                                              13
               All right. The police reports of a murder investigation contain all kinds
       of information, which may or may not be relevant, provable or salient
       ultimately. And the information you’re offering may be admissible through
       another source, but it’s not admissible through this witness just to go into his
       investigation and talk about possibilities where there’s no supporting evidence
       that’s been . . . produced.

                Feel free to do that in your case in chief, but not through various rabbit
       trails . . . that the police may have had to go on in the investigation. So I’m
       going to sustain the objection.

¶44.   Jackson, as mentioned, argues on appeal that, since it was known that two different

sizes of ammunition were used in the shootings of McGowan and Jones, it was reasonable

to conclude that there might have been two shooters. And the jury was entitled to know

“what Jones said, if anything, about Lewis firing any weapons.”

¶45.   But as the State points out, Jackson failed to make a proffer of Detective Camel’s

testimony about whether he learned Lewis might have shot Jones. “When testimony is not

allowed at trial, a record of the proffered testimony must be made in order to preserve the

point for appeal.” Green v. State, 89 So. 3d 543, 554 (Miss. 2012); see also Davis v. State,

130 So. 3d 1141, 1150 (Miss. Ct. App. 2013) (refusing to find that trial court abused its

discretion in sustaining prosecution’s hearsay objection during defense’s cross-examination

of State’s witness when no proffer was offered by the defense and the substance of the

evidence sought was not clear from the question(s)).

¶46.   Jackson is correct that this Court has held that out-of-court statements, otherwise

inadmissible at trial as hearsay, are “admissible to the extent required to show why an officer

acted as he did and was at a particular place at a particular time.” See Swindle v. State, 502

So. 2d 652, 658 (Miss. 1987) (“It is elemental that a police officer may show that he has

                                               14
received a complaint, and what he did about the complaint without going into the details of

it.”).

¶47.     But counsel, whether for the State or the defense, “must have a good faith basis for

any question asked on cross-examination[.]” Flowers v. State, 773 So. 2d 309, 327 (Miss.

2000); Foster, 508 So. 2d at 1115, overruled on other grounds by Powell, 806 So. 2d 1069

(citing U.S. v. Peterson, 808 F. 2d 969, 977-78 (2d Cir. 1987)). Absent a good-faith basis,

it is improper for the cross-examiner to assert in the form of a question the truth of a factual

statement included within the question. “For example, counsel should not ask an eyewitness,

‘Isn’t it true that you are legally blind?’ unless counsel has a good-faith basis for asking the

question.” Foster, 508 So. 2d at 1115.

¶48.     As the State points out, no proffer was made by the defense as to the police reports

or as to Detective Camel’s testimony with regard to the police reports. The complained-of

questions asked by the defense during cross-examination of Detective Camel clearly assert

factual statements as true, but without a showing to the trial court and the record as to

whether a good-faith basis exists for the assertion. Consistent with Green, the claimed error

is waived.

¶49.     Further, as the above-mentioned facts illustrate, the defense called Detective Camel

as a witness during its case-in-chief, and no attempt was made to produce from Detective

Camel any similar evidence the defense had attempted to produce during its cross-

examination of the detective.

¶50.     Accordingly, we find no merit in this point of error.



                                              15
       Davis

¶51.   During cross-examination of Davis, defense counsel sought to admit an audio CD of

Davis’s interview with police for the purpose of impeaching Davis’s testimony about the

second conversation Davis had Jackson. The State objected, arguing that Jackson’s

statements to Davis inculpating other people for McGowan’s murder were self-serving. The

State also argued that using the audio to impeach parts of Davis’s testimony was not proper

because it constituted self-serving hearsay from Jackson. The trial court sustained the State’s

objection, agreeing with the State that the second conversation contained self-serving hearsay

from Jackson.

¶52.   Again, hearsay is an out-of-court statement that “a party offers in evidence to prove

the truth of the matter asserted in the statement.” M.R.E. 801. An out-of-court statement

made by a party and offered against that party is not hearsay. M.R.E. 801(d)(2)(A). Thus,

statements made by a defendant to a witness are admissible when offered by the State against

the criminal defendant, because they are not hearsay. Id. If a defendant wishes to introduce

any of his or her own out-of-court statements, however, he or she must prove the evidence

is either not hearsay or is otherwise admissible. See M.R.E. 802.

¶53.   A “prior statement by a witness” offered to show inconsistency with testimony at trial

also is not hearsay. M.R.E. 801(d)(1). This rule, however, applies only to prior inconsistent

statements of testifying witnesses. “Whereas an inconsistent statement by a testifying

witness can be used to impeach that witness’s credibility, an inconsistent account by another

source is offered to show an alternative view of the truth.” U.S. v. Bao, 189 F.3d 860, 866

(9th Cir. 1999) (quoting Bemis v. Edwards, 45 F.3d 1369, 1372 (9th Cir. 1995)). “Only the

                                              16
declarant of the prior inconsistent statement, and not another witness, may be impeached with

the statement.” Id.

¶54.   Here, the defense told the trial court it wanted to introduce the audio recording of

Davis’s interview with the police for the purpose of impeaching Davis’s testimony, “nothing

more.” Defense counsel stated: “Your Honor, there were several questions that I asked

concerning details, and [Davis] simply – he either contradicted them as never happening or

he said he does not remember. So we would like . . . to offer this . . . audio recording as

impeachment.”

¶55.   The trial court responded: “And these are details that he learned from your client?”

To which defense counsel replied, “Exactly right. And he says as much.”

¶56.   Defense counsel also told the trial court that the audio recording of Davis’s police

interview was approximately “34 minutes” long. And redactions needed to be made to it.

¶57.   For the first time on appeal, Jackson now argues the audio recording was admissible

under a defendant’s right to have his entire statement considered when parts of that statement

are offered by the State, including any self-serving portions. Jackson relies on Sanders, in

which this Court explained:

       In the proof of confessions, the whole of what the accused said on the subject
       at the time of making the confession should be taken together. The
       prosecution is entitled to show the whole statement, or if any part is omitted,
       the accused is entitled to supply it. It is also well settled that if a confession
       is made under such circumstances as to authorize its admission into evidence,
       the accused is entitled to have the entire conversation, including any
       exculpatory or self-serving declaration connected therewith, also admitted.

Sanders, 237 Miss. 772, 115 So. 2d at 146-47.



                                              17
¶58.      This rule now is subsumed by Mississippi Rule of Evidence 106. Often referred to

as the rule of completeness, it provides that, when a party introduces all or part of a writing,

recorded statement, or audio recording, “the adverse party may require introduction, at that

time, of any other part–or any other writing or recorded statement–that in fairness ought to

be considered at the same time.” See M.R.E. 106. “Under Mississippi case law the rule of

completeness is extended . . . even to oral statements.” M.R.E. 106 cmt. (citing Sanders,

237 Miss. 772, 115 So. 2d 145).

¶59.      Here, Jackson failed to invoke this rule or make any argument for it to the trial court.

That should have been done, along with requesting a proffer of the audio recording on that

basis. Because that was not done, this Court has no way of knowing what is contained in the

audio recording. And the matter cannot be considered on direct appeal. Green, 89 So. 3d

at 554.

¶60.      Further, given defense counsel’s contention that portions of the audio recording would

have to be redacted, it is presumable that defense counsel did not want to proceed under this

rule. Otherwise, the door would have been opened for the State to have the audio recording

played in its entirety, unredacted. See M.R.E. 106.

¶61.      We find no reversible error in the trial court’s ruling, and this point of error is without

merit.

          II.    Whether the trial court erred in limiting defense counsel’s closing
                 argument about reasonable doubt.




                                                  18
¶62.   During closing arguments, defense counsel began to address the jury about the State’s

burden to prove its case beyond a reasonable doubt. The State objected, claiming the defense

was attempting to define reasonable doubt. The trial court overruled the objection.

¶63.   Defense counsel proceeded, stating:

       You can think of reasonable doubt relative to other degrees of certainty. Now,
       by example, in a criminal case, you may think the accused probably committed
       the crime. That’s not enough. You may believe the accused likely committed
       the crime. That too is not enough.

The State again objected at that point, and the trial court sustained the objection.

¶64.   Jackson contends this was error. Jackson submits that, although the trial court is not

allowed to define reasonable doubt for a jury, it has never been the case that counsel is

forbidden from arguing what reasonable doubt is or comparing the burden to other standards

during closing arguments.

¶65.   This Court has held that “a definition of reasonable doubt is not a proper instruction

for the jury[,]” because “reasonable doubt defines itself and needs no further definition by

the court.” Martin v. State, 854 So. 2d 1004, 1009 (Miss. 2003); Chase v. State, 645 So. 2d

829, 851 (Miss. 1994). “The meaning of these words is not obscure and it must be assumed

that the members of the jury were . . . of ordinary intelligence and capable of understanding

their meaning.” Cannon v. State, 190 So. 2d 848, 851 (Miss. 1966).

¶66.   Jackson also is correct, however, that this Court has not held it improper for counsel

(either for the defense or the prosecution) to discuss or explain the reasonable-doubt standard

during closing arguments, as long as counsel does so within proper bounds.




                                              19
¶67.   Here, we find that defense counsel’s comparison of “probably committed the crime”

and “likely committed the crime” to the reasonable-doubt standard did not cross those

bounds. And the trial court erred in sustaining the State’s objection to it.

¶68.   But we also find the error was harmless in this instance, beyond a reasonable doubt.

Accordingly, we reject Jackson’s contention that the error requires reversal of his

convictions.

                                      CONCLUSION

¶69.   Finding no reversible error in any of Jackson’s assignments of fault, we affirm

Jackson’s convictions for aggravated assault and felon in possession of a firearm.

¶70.   AFFIRMED.

   WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN,
MAXWELL, CHAMBERLIN AND ISHEE, JJ., CONCUR.




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