IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2017-KA-01759-COA JALEN SHAQUILLE WILLIAMS A/K/A JALEN SHAQUILLE WILLIAMS SR. A/K/A JALEN WILLIAMS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/12/2017 TRIAL JUDGE: HON. LAW RENCE PAUL BOURGEOIS JR. COURT FROM W HICH 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 W illiam s w as convicted of capital m u rder on March 21, 2 017. He appeals the jury ’s verdict and t h e t r i a l c ourt’s denial of his post-trial m otions. Finding no error, this Court af f i rm s the trial court’s orders. FACTS ¶2. In the e arly e vening o f July 22, 2014, Jalen W illiams , age 19, and Rashad Johnson,
age 2 0, were shooting dice in the parking lot of a church in Gulf

port, Mississippi. As theylef

t, t hey com m e nted t o others, including J ustin Atkinson, that t hey were going to “hit a lick,”

me a n i n g t h e y were going to rob som eone. That som e one w as L am ont Hay es who ha d attended t he dice g a m e a couple of weeks earlier f lashing one-hundred do l l a r b i lls. According to A tkinson, W i lliam s c alled him the next d ay to tell him about the robbery “gone wrong.” Apparently , W illiam s and Johnson had entered the hom e with guns. W i lliam s and Hay es b e gan tussling, and W illiam s called f or Johnson’s help. Johnson c am e upon the two and f ired two shots at Hay es. They both f led, and Hay e s later died f rom his wounds. ¶3. Rashad Johnson pleaded guilty to m urder and testif

ied at W i lliam s’s trial. H e said that the robbery was W illiam s’s idea and that W illiam s gave him o ne of t he two guns W illiam s had. They covered their f aces w ith banda n a s a s t h e y e n tered t he hom e. W illiam s went to Hay es’s bedroom while Johnson checked out the o t h e rs. W h en Johnson entered Hay es’s bedroom , W illiam s had his gun to Hay es’s head. Hay es w as asleep but w o k e up when Johnson cam e in. Hay es grabbed W illiam s’s arm , a nd Johnson s tarted hitting Hay es in the head to get him loos e . B ut Hay es held on. W illiam s and Hay es got into the hallway and

were still struggling with each other when Johnson g ot hold o f the gun they were f i g hting

over. W illiam s called t o J o hnson to get Hay e s of f him , which Johnson took as a directive to shoot Hay es, which he did—twice in the leg. They both ran outside; Johnson gave W illiam s h i s g un back, and they went their separate way s. J ohnson was l ater arrested on drug and f irearm charges and ultim ately gave a s tatem ent concerning the H ay es robbery and shooting. ¶4. At trial, other witnesses testif ied including Hay es’s wif e, J e n n i f e r ; h is son, Xavier; various law enf

orcem e nt personnel; and the chief m edical exam iner. W illiam s did not

2testif

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

statem ent, a f

t e r i n i tially d e ny ing any involvem ent in the incident, W illiam s conf essed that he and Johnson had gone to the Hay es hom e, both arm ed, intending to scare Mr. Hay es into giving up his m o ney . But t hings went awry . He said that Johnson went in the h ouse f irst and down the hallway t o Hay es’s b edroom

. W illiam s f ollowed. Hay es woke up, and Johnson and W illiam s dem anded his m oney . Hay es s t arted to g et out o f b ed, and W illiam s, who had

an unloaded gun, t hreatened Hay e s not to m o ve. Hay es grabbed W i lliam s’s arm and started f ighting him

. The f

ight m oved into the hallway a n d t h e n t o t h e living room . Hay es was try ing to get the gun f

rom W illiam s. Finally , i t cam e l oose, and W i lliam s slid i t away f rom them and y elled f

o r Johnson to get Hay es of f of him

. W illiam s said he did not know where Johnson w as, but h e (W illiam s ) f inally got H a y e s of

f , picked u p t he g un, and ran o ut the f ront door. As he was running down the street, he heard gunshots. ¶5. Other evidence included t exts f rom W illiam s’s cell phone. In response to a text f r om

a f riend c alle d Ced who asked what W illiam s a n d “Little S now” (Johnson) had done,
W i lliam s respon d e d : “Hom e invasion gone wrong.” Ref erring to another person who had
gone with them nam ed Cook, W illiam s went on to s ay “[ I]dk i f y u kno cook b ut he took of f running on us and he supposed t o be a gangsta.” Ced replied “[ I]dk him c uz. Y ’all straight though.” W illiam s replied, “[ Y]eah da n---- dead though.” ¶6. At the end of t he trial, the jury f ound W illia ms g u i l t y o f c apital m urder. The trial

court d enied W i lliam s’s post-trial m otions and sentenced W illiam s to lif e without parole. ¶7. On appeal, W illiam s rais e s o n l y t w o i s s u e s t h a t h e claim s m erit reversal of his

3conviction: (1) whether the trial court erred i n preventing W i lliam s f rom cross-exam ining Justin Atkinson about what sentence Atkinson could have r eceived on another charge had he not cooperated with the district attorney and t estif ied in this case; and (2) whether the trial court erred in not allowing W illiam s to call character witnesses. S TANDARD OF REVIEW ¶8. Lim itations placed on c ross-exam ination are reviewed using an abuse-of

- discretion

s tandard. Johnson v. S

tate , 242 S o. 3d 145, 153 (¶15) (Miss. Ct. App. 2017). “ T h e t r i a l

c o u r t ’s decision w ill stand unless the reviewing court concludes that the decision wa s arbitrary and clearly erroneous, am ounting to an abuse of discretion.” Id. Reversal is proper only when the discretion of t he trial court a s to relevancy and adm issibility o f evidence has been abused and a substantial right of a def endant has b een af

f ected. Timmons v. State , 44 So. 3d 1021, 1024 (¶10) (Miss. Ct. App. 2010). The Court reviews de novo a Conf rontation Clause objection. Smith v. State , 986 So. 2d 290, 296 (¶18) (Miss. 2008). DISCUSSION
I. Did the trial court err in lim iting W illiam s’s cross-exam ination of Justin Atkinson? ¶9. T h e S t a t e called J ustin Atkinson to testif y as to actions of W i lliam s and his alleged

accom plice, Rashad “ Snow” Johnson, prior to t he actual r obbery

. This included statem ents they m a de about w hat they were planning to do (“hit a lick”), what they were w earing, and that weapons W illiam s had. A tkinson a lso testif ied abo u t W illiam s’s com ing to his house the next day

and telling him

what had happened. ¶10. At tri a l , A t k i nson testif ied that he was currently serving a t welve-y e ar sentence f or

4possession of m arijuana with i ntent. He recently had pleaded guilty to other charges:

possession o f a f

irearm by a f

e lon and transf

er of a controlled substance. He had not been sentenced o n those charges, b ut the State had recom m end e d a t h r e e-y ear sentence, consecutive to his twelve y ears. He was asked: Q. Do y ou know what y our potential sentence is total between the two? A. Fif t een y ears. The State had clearly brought out that it had recom m ended a lesser sentence f or t he charges Atkinson was still f

acing, with a reduction f

rom f if teen to three y e ars. ¶11. On cross-exam ination, W illiam s’s attorne y s p e n t c o n s i d e r a b l e t i me questioning Atkinson about his latest arrest and how Atkinson had spoken to the police a b out the f acts of this case with the hope that such cooperation would positively af f ect the charges he was f acing: Q. Okay . All right. So it’s true. You wanted to try and tell them

what they wanted to hear that would help y ou get out of y our trouble, right?

. . . . Q. You were try ing to tell the of f icers things that y ou thought would help y ou get them

to help y ou get out of

y our trouble, right? A. Yes. At this point, W illiam s ’s a ttorney went f urther, try ing to establish through Atkinson that beca u s e h e was a repeat of f ender, under the Unif

o rm Controlled Substances A ct, he was subject to twice the sentence f or the p e n d i n g possession with intent to t ransf er charge that h e w o u ld norm ally get. Miss. Code Ann. § 41-29-147(Rev. 2 013). W i lliam s’s attorne y

5asked: Q. Okay . Now, let’s start with y ou haven’t been sentenced on y our f elonies y et, have y ou? A. No, sir. Q. And y ou said today -- what did y ou say

y ou pled guilty

to? A. Possession of

a f irearm and transf

er. Q. Possession of

a f irearm and transf

er? A. Transf

er. Q. And that transf

er was selling m arijuana? A. Yes. Q. Okay . Now, on top of that, in addition to the sentence that y ou’re looking at f

or that, y ou also have prior convictions, right? A. Yes. Q. W hat are y our prior convictions? A. Possession of

intent. Q. Possession with intent, right, which do y ou understand they could double the m axim

um sentence? At this point, the State objected, and the parties m et at the bench. THE COURT: You can talk about any deal that they m ade, but y ou’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.

6THE COURT: W ell, he was f acing -You can ask him

about a deal, not about what his legal exposure is. I’ve ruled.
W i lliam s’s attorney

still tried to get out the enhancem ent and asked: THE DEFENSE: As part of y our deal when y ou pled guilty , was it agreed that y our case would not be enhanced? THE STATE: Objection, Your Honor. He’s try ing to get the back

door the sam e argum ent. THE COURT: Sustained. Go ahead and ask him , what was the deal? THE DEFENSE: I would ask f o r an opportunity

to m ake a record at a later tim e on an issue. THE COURT: You will.
W i lliam s’s attorney

went no f

urther with this questioning. ¶12. A f t e r t h e j u r y was retired, W illiam s’s a ttorney m ade his prof f er by que s t i o n i n g Atkinson f

urther: THE DEFENSE: Now, while he’s here, I would ask to prof f er on the sentence issue. Q. W ith respect to a bargain, okay , y ou were f acing -- pled guilty

to two charges, right? A. Yes. Q. As part of

y our deal, what charges were dism i ssed and not prosecuted? A. There was no deal. Q. W ere y ou not arrested f or other things that were not prosecuted? Did y ou not have other pending charges where y o u got arrested f or other things and when y ou plead guilty to these two things, that the other ones were just passed to the f i les?

7A. I don’t rem em ber. Q. Do y ou rem em

ber whenever y ou were working out this deal, do y ou rem em ber whether or not y our potential m a xim um sentence could be doubled because y ou had a prior drug case and this is another drug case? A. No. Q. You’re say ing no, it cannot be doubled or enhanced? A. Could y ou re-ask the question? Q. Right. W hen y ou m et with y our attorney to work out y our attorney presum ably

m ade the deal with the prosecutor, right? You didn’t talk to the prosecutor about the plea bargain, did y o u? A. No. Q. Okay . So when y our attorney instructed y ou on what y ou could be f acing if y ou were convicted, did y o ur attorney t ell y ou that the state had the ability to enhance y our conviction, y our drug case, to double it? A. No, sir. Q. And whether y our attorney told y ou that or not, are y ou f am i liar enough that y ou know that by , having a prior drug case and getting another drug case, that the state could double y our potential m a xim um sentence? A. No, sir. I didn’t know that. ¶13. On appeal W illiam s now claim s tha t t h i s l i ne o f cross-exam ination o n t he potential enhancem ent of

Atkinson’s sentence was im properly denied and that this denial prevented him f rom presenting his d ef

ense, i.e

. , t h a t Atkinson was not telling the t ruth and that
W i lliam s’s involvem ent in the shooting was ancillary

. ¶14. A n accused has the right t o conf ront a n d cross-exam ine the witnesses a g a i n s t h i m.
8Ambrose v. State , 254 So. 3d 77, 101 (¶56) (Miss. 2018). A leniency /im m unity agreem ent

m ay be presented t o the jury which would tend to im peach or show bias of a w itness. Barnes

v. S tate , 460 So. 2d 126, 131 (Miss. 1984). But a def endant’s right to cross-exam ination is

not unlim ited, and t he Conf r ontation Clause gua r a n t e e s only an opportunity f or ef f ective

cross-exam ination, not cross-exam ination that i s ef f ective i n whatever way , and to whatever extent, the def

ense m ight wish. Harris v. State , 242 So. 3d 1 81, 185 (¶10) (Miss. Ct. App. 2018). ¶15. W h ile this Court recognizes this im portant constitutional right, in W illiam s’s case the

cross-exam ination would have added nothing benef icial to the def

ense. I n the prof

f e r , A t kinson denied knowing that h e could have received twice the am o unt of tim e to s e r v e . Atkinson had a lready testif i ed t hat he h ad charges pendi n g t o w hich the State had

recom m ended a reduced sentence f rom twelve y ears t o three y ears. On cross-exam ination Atkinson revealed that he specif ically a sked t he police w h ether h e could get help with his

current c harges if he told t hem what he knew in this case. Thus, t he jury had evidence that Atkinson was ge t t i n g l e n iency f r om the State on his current charges in exchange f or his testim o ny , which W illiam s’s attorney thoroughly p r obed f or h is client’s benef

it. The trial

court did not lim it Atkinson’s cross concerning this; it only lim i ted questioning concerning statutory provisions of enhancem ent, about which Atkinson knew nothing. This Court does not f ind any error in the trial court’s lim itation under these circum stances. ¶16. Moreove r , i n o r d e r t o e s tablish an abuse of discretion, W illiam s m ust show clear prejudice resulting f

rom the trial court’s lim itation of Atkinson’s cross. See Cage v. State ,

9149 So. 3d 1038, 1044 (¶13) (Miss. 2014). This Court is not convinced that W i lliam s was

prejudiced in the presentation of h is case by t he trial court’s ruling. The f act t hat Atkinson would be receiving a reduced s entence i n exchange f o r his t estim o ny was clearly bef ore the jury f or the def ense to a r g u e A t k i n s on’s m otivation to lie. T he excluded t estim ony would have only shown t hat Atkinson was unaware of how good a d eal he received and would add nothing to the def

ense. W e f

ind no prejudice t o t he def ense in the trial court’s lim itation of Atkinson’s cross-exam ination. 1
II. D i d t h e t r i a l c o u r t e r r b y n o t a l l o w i n g W illiam s t o call ch a r a c t e r witnesses? ¶17. Af ter deny ing the def

ense’s m otion f

or a directed verdict, t he t rial court addressed the parties outside the presence of the jury and asked W illiam s whether he had m ade a decision

on whether or not he would testif y . W illiam s said he had had an opportunity t o t alk to his attorney and he had d ec i d e d n o t to testif y . Thereaf

ter there was the f

ollowing exchange between def

ense counsel and the trial court: THE COURT: Okay

. Y ’ a l l t a k e a s e a t

. A l l r i g h t

. We ’ l l t a k e a short

recess. Get y our witness here. W e’ll get started.

1 E v e n i f th e ex clu sio n o f th is testim o n y a m o u n ted to a v i o l atio n o f Willi a ms’s co n stitu t io n al co n f

ro n t atio n rig h t, th is v io latio n w as h arm less e rro r. In S m ith v. S ta te , 9 8 6 S o . 2 d 2 9 0 , 3 0 2 (¶3 7 ) (M iss. 2 0 0 8 ), an ad m issio n b y a c o - d ef en d an t o f h is im

p licatio n in a crim e w as ex clu d ed

. A f

ter co n clu d in g th at th is m ay h av e b een a co n stitu tio n al v io latio n , o u r S u p rem e C o u rt f

o u n d th a t th e v i o latio n w as h arm l ess b ecau se th i s in f o r m atio n h a d alread y b een p resen ted f

ro m th e d ef

en d an t h im self w i th o u t co n trad ictio n . Id

. at 3 0 1 (¶3 6 ). S im ilarly , h ere A tk in so n ad m itted th at h e h ad ask ed law en f o r ce me n t i f t a l k in g ab o u t th e in cid en t w o u ld h elp h im o n h is o t h er ch arg es. T h e j u r y w as also to ld th at th e S tate reco m m en d ed a lo w er sen t en c e o n A t k in so n ’ s p en d in g ch arg es, o b v i o u s ly in ex ch an g e f o r h is co o p eratio n . M o st im p o r tan tly , th e p ro f

f er sh o w ed th at A tk in so n w o u ld n o t h av e b een ab le to testif

y to th e y ears o f

en h an cem en t an y

w ay . 1 0THE DEFENSE: I n e e d t o a d d r e s s t h a t i s s u e . W i t h o u t t h e d e f e n d a n t testif y ing, m y witnesses, the only witness I’m g o i n g to bring in would be character witnesses. A nd b y the def e ndant not testif

y ing, I think that the state m ay try to o b j e c t to m e putting in character testim ony . But th e character, I would subm it that even though the def endant didn' t testif

y , it would nonetheless be adm issible. THE COURT: His cha r a c t e r ’ s n o t a t i ssue i f he doesn' t testif y . That’s the law.
THE DEFENSE: That' s what I anticipated t hat they would say , but I would

subm i t that the d ef

endant did test i f

y by way of his statem ent. THE COURT: W ell --
MR. CROSBY: So i f that’s y our r uling, I wanted to m ake sure that was– THE COURT: That is the law, and we’re going to f ol l o w i t a s best we can. MR. CROSBY: T h e n i n t h a t e v e n t , w e ’ r e n o t g o i n g t o p r o d u c e a n y

evidence. THE COURT: So y ou’re going to rest? MR. CROSBY: Yes, sir. On appeal, W illiam s argues that the trial court erred in precluding the testim ony of his character witness(es). ¶18. Mississippi Rule of Evidence 404 deals w ith c h aracter evidence, crim es or other acts. It states: (a) Character Evidence. (1) Prohibited Uses

. Evidence of a person’s character or character trait is not adm issible to prove that on a particular occasion the person acted in accordance with the character or trait.

1 1(2) Exceptions f or a Defendant o r Victim in a Criminal Case . The f ollowing exceptions apply in a crim inal case: (A) a d e f

e n d a n t ma y o f

f e r e v i d e n c e o f t h e d ef

endant’s pertinent trait, a n d if the evidence is a dm itted, the prosecutor m ay

of f er evidence to rebut it; (B) a d e f

e ndant m ay of

f er e v idence of an a lleged vic t i m’ s p e rtinent trait, and if t he evidence is adm i tted, t h e prosecutor m ay

of f er evidence to rebut it; and (C) the prosecutor m ay of f er evidence of t he a lleged v ictim ’s trait of peacef

ulness to rebut evidence that the victim was the f irst aggressor.
W i lliam s c ontends that the trial court erred when it prohibited him f rom calling a character witness. However, W illiam s m ade no prof f er of who that character w itness was or what that witness would have said. W hen a trial court prevents the introduction of certain evidence, it is incum

bent on the of

f e r i n g p a r t y t o m ake a prof f e r of the potential testim ony of the witness, or the point is waived f or appellate review. Redhead v. Entergy M iss. Inc. , 828 So. 2d 801, 808 (¶20) (Miss. Ct. App. 2002). W e said in R edhead : To preserve the excluded t estim ony f or appeal, a prof

f er would have to have been m ade so this Court would know what testim o ny was excluded. Since this m atter was not properly p reserved f or appeal, t hen this issue w ill be treated as waived. Id. Th is applies i n crim inal cases as well. S ee Turner v
. State , 732 S o. 2d 937, 9 51 (¶55) (Mi s s . 1999) (“W h en a trial court rules so as t o prevent certain testim o ny f rom being introduced, it is incum

bent on the party to m ake a prof f er of w hat t he witne s s would have testif i ed to or the point is waived f or appellate review.”). W e h ave underscored the need f or a prof f er in several recent cases, say ing:

1 2Generally , when a party seeks to of f er evidence which in turn is excluded by the trial court, b ef

ore we w ill consider t he m a t ter o n appe a l t h e p arty m ust have som ehow placed in the record the nature and s ubstance of t he prof f e red evidence f

or our consideration. W hen testim ony i s excluded at trial, a record m ust be m ade of the prof

f ered t estim ony in o r d e r t o preserve the point f or appeal. Harrell v. State , 179 So. 3d 1 6, 2 1 (¶15) (Miss. Ct. App. 2014). W ithout the prof f er of what this character witness would have said, it is im possible f or this Court to f

ind error in the trial court’s ruling. ¶19. W e a g r e e w i t h t he concurrence that under Rule 4 04, a crim inal def endant is not
req u i r ed to testif

y prior to of

f e ring “character evidence.” However, it should be noted the “character evidence” t hat could be allowed would only be evidence “to p rove tha t o n a particular occasion the person acted in accordance with the c haracter o r t rait.” As illustrated in the com m ent to Rule 4 04, if a def endant claim s that the victim was the init ial aggressor and the d ef

endant’s actions were i n the nature of self -def ense, h e m ay put in evidence of the victim ’s v iolent character—but only af ter the d ef endant had of

f ered evidence of an overt act perpetrated against him by the victim

. Rule 404 does n ot give crim inal def endants carte blanche to of

f er evidence of “truthf

ulness” or “peacef

ulness.” Rather, the c h aracter evidence

m ust be presented t o s h o w t h a t on a particular occasion, t he d ef endant or victim acted in accordanc e with a particular trait he has. Again, without a prof f er of the n ature of the character evidence, we cannot conclude that the trial court erred in excluding it. CONCLUSION ¶20. F i n d i n g n o abuse of discretion, arbitrariness, or other error b y the trial c our t , w e hereby af f irm

.
1 3¶21. AFFIRMED.

BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, LAWRENCE AND C. WI L S ON, JJ., CONCUR. McCARTY, J., SPECIALLY CONCURS WITH S EPARATE W RITTEN OPINION, JOINED BY WESTBROOKS, TINDELL AND LAWRENCE, JJ. McCARTY, J., SPECIALLY CONCURRING: ¶22. W h ile I a g r e e t h a t w ithout a prof f er we cannot know what c haracter evidence the def endant wished to place into evidence, and t heref ore cannot reverse, I write separately to

em phasize that the Rules of Evidence do not require a def endant to testif

y bef ore introducing Rule 404(a) evidence. There is nothing in the plain language o f the Rule that requires this,

a n d i f t h e re were, it would p lace the R ules in a n insurm ountable tension with o u r C onstitution. The trial court’s ruling that W illiam s could not introduce e vidence of ch a r a c t e r , coupled with the denial o f a m ore extensive cross-exam ination, com p els m e to write separately

. ¶23. Our C onstitution m andates that a def endant “shall not be com

pelled to give evidence against h im self

. . . .” Miss. Const. art. 3, § 26. Theref ore a d e f e ndant does not have to testif y during a trial, as the d ef endant in t his case did not. Even if a person did testif y , the person’s statem ents and other evidence are still subject to adm ission by t he trial court. See M.R.E. 104 (prelim inary

questions of

adm issibility

are f or the trial court). ¶24. In g e n e r a l , “ E v idence of a person’s character or character trait is not adm issible to
prove t hat on a particular occasion the person acted in accordance with the character or trait.”
M.R.E. 404(a)(1). This is f or the m ost part a com

plete bar to the adm ission of t his ty pe of evidence in a civil case. See Alpha Gulf Coast Inc. v. Jackson , 801 So. 2 d 7 0 9 , 7 3 0 ( ¶ 7 7)

1 4(Miss. 2 001) (“This Court has held that in civil cases, generally , a p arty m ay not support its

position with t estim ony concerning good c h aracter or reputation.”). Yet even in civil cases, “[ w]hen good character and r eputation are in i ssue . . . s uch as in a f alse im p risonm ent case, the evidence is adm issible.” I d

. ¶25. There i s a specif

ic and express exception f or d ef endants in crim inal cases to the ban

on character evidence. “[ A] def e ndant m ay of

f er evidence of the def

endant’s pertinent trait, and if t he evidence is a d mi t t e d , the prosecutor m ay of f er evidence to rebut it.” M.R.E. 404(a)(2)(A). The express exception still has per mi ssive language, indicating that the evidence is still subject to adm ission under the trial court’s wide discretion. ¶26. Indeed, the plain language of Rule 404 even s e t s o u t how the procedure w ill work.
I f a d e f e n d a nt brings in evidence, then the prosecutor h as the ability to rebut it if she s o chooses. This i s a sim

pl e p r o c edure that recognizes t he extraordinarily high stakes of a crim inal trial – not the loss of m oney or property

through a dam a ges award, but the loss of liberty through a guilty

verdict. ¶27. The Suprem e Court e xplained this procedure in 1993, noting that “[ t]his Rule f latly prohibits the use of character evidence of a d e f e n d a n t to s h ow he acted in conf orm ity therewith on a particular o cca s i o n , unless (1) such evidence is of f ered by the def

endant or (2) the def

endant takes the witness stand.” Hopkins v. State , 6 39 So. 2d 1247, 1251 (Miss. 1993). As Rule 404(a) and the Hopkins Court m ake clear, there is no requirem ent that the def endant him or herself testif y bef ore they m ay of

f er c h aracter e v idence. Of

f ering character evidence through a witness is suf f icient.

1 5¶28. There i s no t h i n g t h a t r e q u ires that the def endant waive his or her right to not give testim o ny under our C onstitution. Even if t hat were the l aw, w hich it is not, any concern of lack of testim ony would h ave b e e n g reatly alleviated b y the adm ission of the 164-page interrogation of the def

endant, which provided a de f acto testim ony

f or the jury

to assess. ¶29. The ref

usal t o allow the d ef

endant to p roduce witnesses was c o upled with a restraint

on cross-exam ination. “The right to cross-exam i ne a witness has been held t o be a valuable and highly protected r ight.” Holliday v. S tate , 758 S o. 2d 1 078, 1082 (¶12) (Miss. Ct. App. 2000). “The right of c ross-exam ination has been l im ited only to clear cases of irrelevancy , trespass bey ond adm i ssible grounds, or extrem e s of continual aim l ess repetition.” Id

. ¶30. In the trial giving rise to this appeal, def e nse counsel sought to deeply cross-exam ine

a witness who had blatantly adm itted that he w as try ing to curry f avor with law enf

orcem ent in exchange f

or leniency

. W hen asked, “You were t ry ing to tell the of f icers things that y ou thought would help y ou get them to help y o u get out o f y our t ro u b l e , r ight? ” the witness
rep l i e d , “Yes.” Cross-exam ination is m ade f o r just such a person. W hile it m ay not have been reversible e rror under the f acts of this particular case, I b elieve that cross-exam ination should rarely

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

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