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 W EILL, SR. TRIAL COURT ATTORNEYS: GREG RICHARD SPORE MICHELE PURVIS HARRIS MICHAEL ERIC BROW N ESEOSA GW ENDLINE AGHO JACK BRADLEY McCULLOUCH COURT FROM W HICH 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 AINSW ORTH 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 f rom his convictions f

or aggravated assault and f elon in possession of

a f irearm af ter a jury trial in Hinds C ounty Circuit Court. The jury acquitted Jackson of deliberate-design m u rder, which was charge d i n t h e sam e indictm e n t. Jacksonclaim s the trial court com m itted reversible error by : (1) l im iting def ense counsel’s crossexam ination of S tate’s w itnesses; and ( 2) lim iting def ense counsel’s closing argum ent about reasonable doubt. Finding no reversible error, we af f irm Jackson’s convictions. FACTS ¶2. In t he early m o rning h o urs on Novem ber 1 1, 2014, two m en were shot near Roach Street in Jackson, Mississippi. One of the victim s, Quincy McGowan, died. His b ody was discovered in a nearby vacant lot by a p asserby shortly af ter noon on Novem

ber 11. Police f ound ten 9 m m shell casings near the body , and a 9 m m projectile was recov e r ed f rom McGowan’s body

during autopsy

. ¶3. The other victim , Em m anuel Jones, s urvived af ter being shot f

ive tim es–once in the f ace, three tim es in the t orso, a nd once in the f oot. Doctors retrieved a .22 caliber projectile f rom Jones’s body

during treatm ent at a nearby hospital. ¶4. Jones testif

i ed at Jackson’s trial. According to J ones, h e and J a c k s o n w e r e riding around in Jackson’s vehicle looking to buy som e d rugs on the night of the shooting. At som e point, Jones and Jackson encountered Jerry Lewis driving another vehicle, w ith two m ales riding as p assengers. Jones and Jackson f ollowed Lewis to the v icinity o f Roach Street and Farrish Street, where they parked the vehicles in a vacant lot. ¶5. Jackson and Lewis got out of their vehicles a n d started talking. The two then began
to argue. Jones said he heard J ackson tell one of the other individuals riding with Lewis to get out of the vehicle. J ones s aid he heard a gunshot, a n d he saw Jackson shoot McGowan.

2J a ckson t hen cam e back to his vehicle and walked over to the passenger side where Jon e s

was sitting, and began shooting Jones. ¶6. J o n e s g o t o u t o f t h e vehicle and ran to a nearby house, banged on the door, a n d collapsed on the porch. The hom e’s occupant called 911. ¶7. A couple of weeks af ter the sho o t i n g , J ones identif ied Jackson f

r om a photo lineup

as the person who had shot him

. Jones told the jury he believed Jackson had s hot him (Jones) because Jackson did not want any witnesses. ¶8. On cross-exam ination, Jones adm itted he was a p rior-c o n v i c t e d f e l o n a nd was on probation at the tim e of the shooting. Jones s aid he was n o t a l l o wed to own or possess a f irearm

. Jones said he d id not own a gun, and was not in possession of one at t he t im e of the shootings. ¶9. Jones’s sister, Jerm inda My ers, testif ied on behalf of the State. My ers said, soon af ter the shooting, she talked t o Jones at the hospital about what had happened. My ers, who had

once dated Jackson, said she had received a phone call f rom J ackson s hortly af

ter she talked
to Jones at the hospital. J a c k s o n s a i d h e heard Jones had been shot. According to My ers, Jackson was questioning her about Jones’s condition and try ing to f ind out if Jones was able
to talk. My ers said she “ play e d a l ong” and told Jackson Jones “was in critical condition.” My e r s s a id “it wasn’t true.” Jones was not in c ritical c o ndition, and she had t alked to Jones and Jones had t old her who shot him

. My ers said when Jackson said to her, “Ain’t no telling who did it[ ,]” she “alm ost bit [ her tongue] of f .”

3¶10. My ers said she received another phone call f rom J ackson a d ay later, asking if she still lived i n the sam e apartm ent. And Jackson aske d i f M y e r s ’ s m other still lived i n the sam e location. My ers said she responded to Jackson: “I asked him did his m om stay in the sam e spot she lived in.” ¶11. Detective Rozerrio Cam el of the Jackson Police Departm ent testif ied on behalf of the State and t he def

ense. Detective C am el investigated the scene where McGowan’s body was f ound on Novem

b er 11. ¶12. D e t e c t i v e C a me l s a i d J a ckson developed as a suspect in the ca s e d u r i n g h i s investi g ation. And Detective C am el said he received a telephone call f rom an individual

nam ed Michael Davis, say i ng he h ad som e inf orm ation concerning the death o f McGowan. ¶13. Davis testif

ied at trial that M cGowan was h is b est f riend, w hom he had known since the f ourth grade. Wh e n D a v i s learned McGowan had been killed, Davis began asking around t r y i n g t o f

o und out who had killed him

. D avis said when he spoke to Jackson, Jackson h a d adm itted killing McGowan. According to Davis, Jackson stated: “Okay

. I did it. Now what are y ou going to do? ” ¶14. Davis thereaf

ter spoke to Detective Cam el and told him that Jackson had said he had killed McGowan. Detective Cam el showed Davis a photograph lineup, f r om which Davis identif ied Jackson. Davis also identif ied Jacks o n i n t h e courtroom as the person who had told him that he had killed McGowan.

4¶15. On cross-exam ination, D a v i s t e s t i f i e d that he had a subsequent conversation with Jackson in w hich Jackson said that Lewis also w a s involved, a long with som e one nam ed “Tope.” ¶16. During the def

ense’s case-in-ch i e f, t

h e d e fe n s e called two w itnesses: D etective Cam el and Tom m y Bishop, a f

irearm s e xam iner at t he Mississippi C rim e Laboratory

. Jackson did not testif y . ¶17. The def

e nse f irst asked Detective Cam el a b o u t i tem s that w ere f ound at the crim e

scene a nd what, if any , f

orensic tests were conducted on those item s . Detective Cam el said he had turned over all the item s recovered t o the Mississippi Crim e Lab. The def ense also asked D e t e c t i v e Cam el whether any D NA sam ples were collected f

rom Jones, or f

rom any one e lse in connection with the shootings. Detective Cam e l said n o D NA sam p les were collected f

rom any o ne. ¶18. Lastly , the def

ense asked Detective Cam e l w hether he had interviewed Lewis during the course of h is i nvestigation. Detective Cam el said he had interviewed Lewis, a nd Lewis

was considered a potential suspect. But accord i n g t o Detective C am el, they did not have enough evidence linking him to the shooting(s). Detective Cam el said “nobody cam e to m e and told m e that they s a w [ L ewis] shoot [ any o ne].” W hen the def ense a sked Detective Cam el whether Lewis was dism issed as a potential suspect, Detective Cam e l said: “I never did dism iss him

. I just d idn’t h ave enough to m ake an a rrest. Like I said, I did interview him .”

5¶19. B i s h o p testif ied that he had exam ined o ne o f the bullet projectiles recov e r e d f r o m Jones’s body

. Bishop said he w a s p o s i t ive it was “a

. 2 2-caliber[ ,]” and not a “ninem illim eter.” Based on a question asked by the def e n se, Bishop said the report he received in the case listed two suspects, “Roger Jackson and Jerry Lewis.” ¶20. Af ter t h e c a s e w as subm i tted to the j ury , Jackson was f ound guilty of

aggravated assault and f

elon in p o ssession of a f

irearm

. The jury acquitted Jackson of d eliberate-design

m urder. This appeal f

ollowed. Additional f

acts will b e related in the d iscussi on of the issues. DISCUSSION I. Whether the t r i a l court e rred in lim iting Jackson’s c rossex am ination of the State’s w i tnesses. ¶21. Jackson claim s h is def e nse strategy at trial was t o im peach Jones and shif

t the blam e f or both s hootings to L ewis. According t o J ackson, at several key p o i n t s d u ring crossexam ination of state w itnesses, the State interrupted Jackson’s ef f orts t o e stablish evidence in support of his def

ense with various o b

j e c t i o ns that were sustained by the t rial court. Jackson contends th i s violated his f ederal and state constitutional rights to conf ront witnesses against him

. See U.S. Const. am e nds. V, VI; Miss. Const. art. 3, § 26 (1890). ¶22. First, according to J ackson, af ter Jones t estif

ied that Lewis a nd J ackson were arguing, def ense counsel asked Jones if he had r eported to the police t hat during the argum e nt, Lewis had e xpressed angry rem arks about Lewis’s residence being “shot up.” The S tate objected

on the basis that the question was “ im p roper,” and the trial court sustained w ithout stating the basis, telling the jury

to disregard the question and the answer elicited.

6¶23. Jackson contends that, since the f act Jackson and Lewis had been arguing had been established, the subject of the argum ent was relevant a nd probative under Mississippi Rules of Evidence 401, 403, and 613. Jackson argues that the question did n ot call f or a hearsay
response, because what was asked was not to establish the truth of the m atter asserted, but rather t o e s tablish that Lewis was angry . See M.R.E. 801(c). And Jackson subm its t hat, even if i t was hearsay , two exceptions to the r ule applied, those f

or excited u tterances and a p r e s e n t -sense im

p ression, under Rules 803(1) and (2), b ecause Lewis was involved in an argum ent. ¶24. Jackson next argues that, during Detecti v e C a me l ’ s c r o s s - e x a mi n a t i on, def ense counsel was in the process of lay ing a f oundation that som ething Jones purportedly said to the police gave indication that L ewis m ay have shot Jone s a n d M c G o w an. The State objected and the trial court sustained, f inding the question called f o r speculation. ¶25. According to J ackson, since it was known t wo dif f e r ent calibers of am m

u nition were used in the shootings, it was reasonable to conclude there m a y have been t w o s h o oters. Theref ore, the jury was entitled to know w hat Jones said, if any thing, about Lewis f

iring any weapons. ¶26. Lastly , on this issue, J ackson claim s that another dam aging lim itation of his right to

c o n f r o n tation occurred w hen def ense counsel “ began t o press” Davis o n exactly w h a t Jackson had said to him about Lewis’s involvem ent. T he State objected to hearsay , and the trial court sustained, f

inding that testim ony about what Jackson had told D avis about Lewis’s involvem e nt was inadm issible, self -serving hearsay

.

7¶27. Jackson argues that, since he (Jackson) allegedly adm i tted to D avis that he had shot

McGowan, his (Jackson’s) alleged rem arks about Lewis’s involvem ent were not self -serving and were adm i ssible. J ackson contends the entire conversation between D avis and him self

was adm issible under a def endan t’s right to have his e ntire statem ent considered when of f ered by the State, including any self -serving portions. J ackson r elies on Sanders v. State , 237 Miss. 772, 1 1 5 So. 2d 145, 146- 4 7 ( 1 9 5 9 ) , in w hich this Court held that, in regard to conf essions: “[ T]he whole of w hat the accused said on t he subject a t the tim e of m aking the conf ession should be tak e n t o gether. The prosecution is e n titled to show the whole
statem ent, or if a ny part is om itted, the accused is entitled to s upply it.” Further, “the accused is entitled to have the entire conver s ation including any exculpatory or self -serving declarations connected therewith, also adm itted.” Id

. at 147. ¶28. J a c k s on m aintains that Mississi p p i l o n g h a s f o l l o w e d t h e w i d e - o p e n c r o s s exam ination codif

ied in Rule of Evidence 611(b). And th e t r ial c ourt violated this rule by lim iting Jackson’s c r o s s - e xam ination, which irreparably prejudiced Jackson’s a ttem pt to present a def

ense and violated his constitutional right to conf ront key witnesses. ¶29. Jackson c laim s he also w as prejudiced by n o t b e i n g a llowed to present e vidence in support of his def

e nse, nam ely , that Lewis shot McGowan and Jones. Citing Terry v. State , 718 So. 2 d 11 1 5 (Miss. 1998), and Keys v . State , 635 So. 2d 8 45 (Miss. 1994), Jackson points out that this Court steadf astly has held that a “crim inal def endant is e ntitled to present his def ense to the f

inder o f f

act, and it is f

undam entally un f

a i r t o deny t he jury the

8o p p o r t u n i ty to consider the def endant’s def

ense where there is testim ony to s upport t h e theory .” Terry , 718 So. 2d at 1121. ¶30. Jackson urges application of the principles that guided t his Court in Terry , in which the def e n dant was charged with em bezzling m oney f

rom her e m

ploy er. I d . at 1120-21. In T e r r y , t h e def endant sought to present e vidence that other people, including the business

owners, were p ossible suspects, but the trial court p revented her f rom doing so. Reversing the trial court j udgm ent, this Court held that “when a n accused is being tried f o r a serious of f ense, the jury

is entitled to hear any testim ony that t he [ def endant] m ay

have in the way of an alibi or def

ense.” Id . at 1123. ¶31. Here, we f

i nd no reversible error i n a n y of Jackson’s claim s. W e w ill d iscuss each separately

. ¶32. Our standard o f review r e garding the adm ission or exclusion of evidence is abuse of discretion. Brown v. State , 965 So. 2d 1023, 1 026 ( Miss. 2007). “For a case to be reversed

on the adm ission o r exclusion of evidence, it m ust result in p rejudice and harm or a dversely af f ect a substantial right of

a party .” Pham v

. State , 716 So. 2d 1 100, 1102 (Miss. 1998). Jones ¶33. The def

ense s ought to im

peach Jones with prior, inconsistent, out-of -court statem ents that the def

ense c ontends Jones m ade to Detective Cam el during his investigation in the case. The def ense also sought to obtain evidence f r om Jones in support of its theory in the case that Lewis, not Jackson, m ay

have been the shooter of both victim s.

9¶34. According to the record, af ter def ense counsel asked Jones about his t rial testim ony regarding the three m en in the other vehicle, a n d about J o nes being able to i dentif y only Lewis f rom the other vehicle, the f

ollowing exchange took place. Q. Thank y ou. Now, [ Jackson] and Jerry Lewis, “Puppy , ” were arguing over som ething f

o r about ten or 15 m inutes, right? A. Yes, sir. Q. They were arguing f or about ten or 15 m i nutes? A. Yes. Q. Okay

. And a t som e point during this f ive, ten-m inute a rgum ent, conversation, M r. Lewis said, “that m *****f ***** ha d s o mething 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 t o approach the bench. During the bench conf erence, the State claim ed this line of question i n g w as im proper on t he ground it constit u t e d h e arsay . The trial court asked the def ense f or a r esponse, to which def ense counsel said t h e r e w as no c ontem poraneous objection b y the State. T he trial court responded: “ W e ll, the objection has been m ade. And d o y o u h a v e a response t o it? ” The def ense replied, “No.” The trial court then sustained the State’s objection and told the jury to disregard the witness’s last com m ent. ¶36. W e f

ind no e rror i n the trial court’ s r u l i n g . Jackson is c orrect that a def endant in a crim inal trial has a f

undam ental right, i mp l i c i t in the Conf rontation Clauses of our f ederal and state constitutions, to cross-exam ine the witnesses t estif y ing against t he def

endant. U.S.

1 0Const. am ends. V, VI; Miss. Const. art. 3, § 26 (1890 )

. T h e r ight, h owever, is not

unbounded. Foster v. State , 5 08 So. 2d 1111, 1114 (Miss. 1987), overruled o n other grounds by Powell v

. State , 806 So. 2d 1069 (Miss. 2001). “Its contours are shaped s o as
to accom [ m ]odate other legitim ate interests[ ]; a n d i t i s alway s subject to the trial court’s inherent power to lim it cross-exam ination to relevant f actual i ssues.” I

d

. (citing C

ham bers

v. Mississippi , 410 U .S. 2 84, 93 S. Ct. 1083, 35 L. Ed. 2d 297 (1973), and Johnston v. State , 376 So. 2d 1343 (Miss. 1979)); see also Delaware v. V an Arsdall , 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 6 74 (1986) (“[ T]he Conf rontation Clause guarantees an opportunity f or ef f ective cross-exam ination, not cross-exam ination that is ef f ective in whatever way , and to whatever extent, the def ense m ight wish.”). ¶37. Ultim ately , determ ining whether the trial court abused i ts discretion i n lim iting crossexam ination necessitates “caref ul ref l ection upon the nature and purpos e o f t he question propounded.” Black v. State , 506 So. 2 d 2 64, 267 (Miss. 1987). A nd t his Court has held that “[ o]ne is deprived of the right to c ross-exam ine when the t rial court f undam entally and substantially restricts it[ , ]” a nd the court does s o through no f ault of the cross-exam iner. Culp v. S tate , 933 So. 2d 264, 276 (Miss. 2005) (citing Myers v. State , 2 96 So. 2d 695, 701 (Miss. 1974)). ¶38. Here, the trial court i nvited def ense counsel to respond to the S t a t e ’ s o b j ection that Lewis’s a lleged s t a t e m ent prior to the shootings about L ewis’s “residence being shot up” constituted hearsay

. But def ense counsel had no response. Accordingly , t he def ense f ailed to preserve error, if

any , on the trial court’s ruling.

1 1¶39. This Court repeatedly has h eld that the trial c o urt cannot be put in error f or som ething
upon which i t had n o o pportunity to pass. Patterson v . State , 594 So. 2d 606, 609 (Miss. 1992). Now on appeal, Jackson argues f or the f irst tim e that the question did n ot call f o r a hearsay response because what was asked w as not to establish the truth o f t h e ma tter of asserted, but rather to establish that Lewis was angry . This argum ent, however, was never presented to the trial court and thus is barred f rom consideration on appeal. Id . at 609. Detective Cam el ¶40. The record s h o w s t h e f o l l o w i n g exchanges occurred during the defense’s crossexam ination of

Detective Cam el: Q. All right. Now, y ou f urther l earned that [ Jones] believes [ Jackson] shot [ him , Jones], correct? A. I can’t answer that. I can basically answer what he t ol d me . Wh e n I talked to [ J ones], [ Jones ] t o l d m e that [ Jackson] was the person t hat shot him

. Q. Okay

. A. [ Jones] didn’t say h e believed. [ Jones] said [ Jackson] was the pe r s on that shot him

. Q. Okay

. But y ou th e n learned that [ Jones] m ight 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 b ench conf erence e nsued. The State contended the def ense was attem

pting to m islead the jury

. The trial court t hen asked def ense counsel, “what’s y our g ood f

a ith basis f

or that? ” Def

e n s e c o u n s e l replied, “Every thing I’ve said

com es f rom the police r eports.” The trial court s aid, “W ell, if the question is he m ight have

1 2been shot accid e n t a lly , doesn’t that call f or speculation? ” Def

e nse counsel replied that he

was s im ply asking Detective Cam el “what he learned as the i nvestigation proceeded[ ,]” and “was not asking him to state it as a m atter of truth.” Def ense counsel argued that Mississippi caselaw s ay s that “out-of

-court statem ents to the police as they relate to w hat t he police did in their p o lice investigation are not h e a rsay . ” The trial court r esponded: “Oh. So the
statem ent that y o u were a ttem pting to suppress a f

ew m om ents ago of this witness would – f it that very category , then, right? ” Def ense co u n s el replied: “No, sir, i t doesn’t, because there’s a Conf

rontation clause issu e w ith respect to Michael Davis.” The t rial court then

sus t a i n e d the S tate’s objection, stating: “I’m going to s ustain the objection. I think we’re getting pretty

f a r af ield. So please continue.” ¶42. Def

ense counsel proceeded: Q. Now, y ou learned during the cour s e of y our i nvestigation that Jerry Lewis, “Puppy ,” was possibly involved i n the shooting of [ Jones], correct? A. I learned that he was there.

. . . Q. And y o u f

u r t h e r l e arned that P uppy . . . m ight have shot [ Jones,] correct? ¶43. The State objected and another bench conf e r ence ensued. The S tate objected to any

m ention that “Puppy ” was the shooter or possible shooter i n thi s investigation. Def ense counsel responded: “I’m t aking it all f rom the police r e p o r t s, Your Honor, the discovery provided to m e and narratives and all the incident reports. I’m taking t his right f rom that, and I’m just building through the investigation. That’s all I’m doing.” The trial court responded:

1 3All right. The police reports of a m u rder investigation contain all kinds of inf o r ma t ion, which m a y o r m ay not be relevant, provable or salient ultim atel y . And the inf

orm ation y ou’re of

f e ring m ay b e adm issible t hrough another source, but it’s not adm issible through this witness just t o go into his investigation and talk about possibilities w here there’s no supporting evidence that’s been . . . produced. Feel f ree to do that i n y our case i n chief , but not through various rabbit trails

. . . that the p o lice m ay have h ad to go on in the investiga t i o n . S o I’m going to sustain the objection. ¶44. Jackson, as m e ntioned, argues on appeal that, since i t w as known that two dif f erent sizes of am m unition were used in the shootings of McGowan and Jones, it was r easonable
to c o n c l u d e that there m ight have been two shooters. And the j ury was entitled to know “what Jones said, if

any thing, about Lewis f

iring any weapons.” ¶45. But as the State points out, Jackson f ailed t o ma k e a p r o f

f er of Detective Cam el’s testim o ny about whether he learned Lewis m ight have shot Jones. “W hen testim ony is not allowed at trial, a record o f the prof f ered testim ony m

ust be ma de in order to preserve the point f or appeal.” Green v. S

tate , 89 So. 3d 5 43, 554 (Miss. 2012); see also Davis v. State , 130 So. 3d 1141, 1 150 (Miss

. C t

. A p p. 2013) (ref using t o f ind t hat trial court abused its discretion in sustaining prosecution’s hearsay objection during def ense’s cross-exam ination of State’s witness when n o p r o f f e r was of f ered by the d ef

ense and the substance of the evidence sought was not clear f rom the question(s)). ¶46. Jackson i s correct that this Court has held that out-of

- c o u r t s t a t e me n t s , otherwise inadm issible at trial as hearsay , a re “adm issible to the extent required to show why a n of f icer acted as h e did and was at a particular place at a particular tim e.” S ee S windle v. State , 502 S o . 2 d 6 52, 658 (Miss. 1987) (“It is elem ental that a police o f f icer m ay show that he ha s
1 4received a com plaint, and w hat he did about the com plaint without going i nto the details of it.”). ¶47. But c ounsel, whether f or the State or the def

ense, “m ust h ave a good f

aith basis f

or any question a sked on cross-exam ination[

. ]” 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, 9 77-78 (2d C ir. 1987)). Absent a g ood-f aith basis, it is im p r oper f or the cross-exam iner to assert in the f o rm o f a question the t ruth of a f actual
statem ent included w ithin the question. “For exam ple, counsel should n ot ask an ey ewitness, ‘Isn’t it true that y ou are legally blind? ’ unless counsel has a good-f aith basis f

or asking the question.” Foster , 508 So. 2d at 1115. ¶48. A s t h e State points out, no prof f er was m a de b y the def

ense as to the police report s
or as to Detective Cam el’s testim ony with regard to the p olice reports. The com p lained-of questions asked by the def ense during cross-exam ination o f D etective Cam el clearly assert f ac t u a l s t a tem ents as true, but without a showing t o the trial court a nd the record as to whether a good-f

aith basis exists f

or the assertion. Consistent with Green , the claim ed error is waived. ¶49. Further, a s the above-m entioned f acts illustrate, the def

ense called D etective Cam el

as a witness during its c a se-in-chief , and n o attem

pt w as m ade to produce f rom Detective C a mel a ny sim ilar e vidence the def ense had attem

pted to p roduce during its cros s exam ination of

the detective. ¶50. Accordingly , we f ind no m erit in this point of error.

1 5Davis

¶51. During cross-exam ination of Davis, def ense counsel s ought to adm it an audio CD of Davis’s interview w ith police f or t h e purpose of im

peaching Davis’s testim o ny about the second conversation Davis had Jackson. The State o bjected, arg u i n g t h a t J ackson’s
statem ents to D avis inculpating o ther people f o r McGowan’s m

urder w e r e s elf

-serving. The State also argued that using the audio to im peach parts of Davis’s t estim o ny w as n ot proper because it constituted self -serving hearsay f

rom Jackson. The trial court sustained the State’s objection, agreeing w ith the S tate that the sec o n d c o n v e r s a t i o n c o n t a ined self

- serving hearsay f rom Jackson. ¶52. Again, hearsay

is an out-of

-court statem e n t that “a party o f f ers in evidence to prove the truth of the m a tter a s s e r ted in the statem e n t.” M.R.E. 801. An out-of -court statem ent

m ade by a party and of

f ered against that party

is not hearsay . M.R.E. 801(d)(2)(A). Thus,
statem ents m ade by a def

endant t o a witness are adm i ssible when of f e red by the State against the crim inal def

endant, because they are not hearsay

. Id

. If a def endant wishes to introduce
any of his or her own out-of

-court statem ents, however, he or she m u st prove the evidence is either not hearsay

or is otherwise adm issible. See M.R.E. 802. ¶53. A “prior s tatem e nt by a witness” of f ered to show inconsistency with testim ony at trial also i s not hearsay

. M.R.E. 801(d)(1). This rule, however, applies o nly to prior inconsistent
statem ents of testif

y ing witnesses. “W her e a s a n inconsistent statem e nt by a testif y ing witness can be used to im

peach that witness’s credibility , an inconsistent account by another

source is of

f ered t o show an alternative view o f the truth.” U.S. v . Bao , 1 89 F .3d 860, 866 (9th C ir. 1999) (quoting B em is v . Edwards , 4 5 F.3d 1369, 1372 (9th Cir. 1995)). “Only the

1 6declarant of the prior inconsistent statem ent, a nd not a n o t h er w itness, m a y be im

peached with the statem ent.” Id

. ¶54. Here, the def

e n s e t old the trial c ourt it w a n ted to introduce t he audio recording of Davis’s interview with the police f or the purpose of im

peaching D avis’s testim ony , “nothing

m ore.” Def

ense counsel stated: “Your Honor, t here we r e s e v e r a l questions that I asked concerning details, and [ Davis] sim ply – he either contradicted them as never happening or he said h e does not rem em ber. So we woul d l i k e . . . to of f er this

. . . audio recording as im p eachm ent.” ¶55. The trial court responded: “And these a r e details that h e learned f rom y our client? ” To which def

e nse counsel replied, “Exactly right. And he say s as m

uch.” ¶56. Def

ense counsel also t old the trial court tha t t h e a u d i o recording of Davis’s police interview was approxim ately “34 m inutes” l ong. And redactions n eeded to be m ade to it. ¶57. For the f

irst tim e o n appeal, Jackson now argues the audio recording was adm issible under a def

endant’s right to have his entire statem ent considered when parts of that statem ent

are of f ered b y the State, including any self -serving portions. Jackson r elies on S anders , in which this Court explained: In t he proof o f c onf

e ssions, the whole of w hat the accused said on the subject at the tim e of m aking the c o n f e s s i o n should be taken together. The prosecution is entitled to show t he whole statem ent, or if any part is om i tted, the accused is entitled to supply it. It is also well settled that i f a c onf e ssion is m ade under such circum stances as to a uthorize its a dm ission into e vidence, t h e accused is entitled to h ave the entire conversation, including any exculpatory or self

-serving declaration connected therewith, also adm itted. Sanders , 237 Miss. 772, 115 So. 2d at 146-47.

1 7¶58. This rule now is subsum ed by Mississippi Rule of Evidence 106. Of ten r e f erred to

as t he rule of com

pleteness, it p r ovides that, when a party introduces a ll or part of a writing, recorded statem e nt, or audio recording, “the a d verse party m ay require introduction, at that tim e, of any other p art–or a ny other writing or recorded statem ent–that in f airness ought to be considered at the s am e tim e.” See M.R.E. 1 06. “Under Mississippi case law the rule of

com pleteness is extende d

. . . even to oral statem ents.” M.R.E. 106 cm t. ( citing Sanders , 237 Miss. 772, 115 So. 2d 145). ¶59. Here, J a ckson f

ailed to invoke this r

u le or m a k e any argum e n t f or it to the trial court. That should have been done, along with requesting a prof f er 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. A nd the m atter cannot be considered on direct appeal. Green , 89 So. 3d at 554. ¶60. Further, given def

ense c ounsel’s cont e n t i o n t h a t p o r t i o n s of the audio recording would have to be redacted, it i s p resum able that def ense c ounsel did not want t o proceed under this rule. Otherwise, the door would have been opened f or the State to have the audio recording play ed in its entirety , unredacted. See M.R.E. 106. ¶61. W e f

ind n o reversible error in the trial c o urt’s r uling, and this point of error is without

m erit. II. Whether the trial court erred in l im iting defense counsel’s closing

argum ent about reasonable doubt.

1 8¶62. During closing argum ents, def ense counsel began to address the jury about t he State’s burden to p rove its case bey ond a reasonable doubt. The State o bjected, claim ing the def ense
was attem

pting to def

ine reasonable doubt. The trial court overruled the objection. ¶63. Def

ense counsel proceeded, stating: You can think o f reasonable doubt relative to o ther degrees of certainty

. N ow, by exam p le, in a crim inal case, y ou m ay think the accused probably com m itted the crim e. That’s n o t enough. You m a y believe the accused likely com m itted the crim e. 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 subm its that, although t he trial court is not allowed t o def

ine reasonable doubt f

or a j ury , it has never been the c ase that counsel is f orbidden f

rom a rguing what reasonable doubt is o r com paring the b urden to other standards during closing argum ents. ¶65. This Court has h eld that “a def inition of reasonable doubt is not a proper instruction f or the jury [ ,]” because “ reasonable doubt d ef ines itself a n d n eeds no f

urther def inition by the c ourt.” Martin v. State , 854 So. 2d 1004, 1 009 ( Miss. 2003); Chase v . State , 645 So. 2d 829, 851 (Miss. 1994). “The m eaning of these words is n ot obscure and it m u st b e assum ed that the m em

bers of the j ury were . . . of ordinary intelligence and capable of u nderstanding their m eaning.” Cannon v. State , 190 So. 2d 848, 851 (Miss. 1966). ¶66. Jackson also is correct, h owever, that this Court has n ot held it im proper f o r counsel (either f or the def ense o r the p rosecution) to d iscuss or e xplain the reasonable-doubt standard during closing argum ents, as long as counsel does so within proper bounds.

1 9¶67. Here, we f i nd that def

ense counsel’s c om

parison of “probably com m itted t he crim e ” and “likely com m itted the crim e” 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 f

ind the error was h arm l ess in this i nstance, bey ond a reasonable doubt. Accordingly , we r eject Jackson’s contention t hat t he error requires r eversal of his convictions. CONCLUSION ¶69. Finding no reversible error in any o f Jackson’s a s sig n me n t s o f f a u l t , w e af

f irm Jackson’s convictions f

or aggravated assault and f elon in possession of

a f irearm

. ¶70. AFFIRMED. WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., K I N G, COLEMAN, MAX W ELL, CHAMBERLIN AND ISHEE, JJ., CONCUR.

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