IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-KA-00318-SCT

RONALD A. ZOERNER

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 03/14/96

TRIAL JUDGE: HON. ROBERT H. WALKER

COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: MACK A. BETHEA

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: DEWITT T. ALLRED III

 WAYNE SNUGGS

DISTRICT ATTORNEY: CONO CARANNA

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REVERSED AND REMANDED - 6/18/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 8/21/98

BEFORE PRATHER, C.J., ROBERTS AND MILLS, JJ.

PRATHER, CHIEF JUSTICE, FOR THE COURT:

I. INTRODUCTION

¶1. This case arises from a September 17, 1994, automobile accident on Lake Shore Road in

Hancock County, in which a pedestrian (Marguerite Richardson) was killed. On May 1, 1995, Ronald

A. Zoerner was indicted for felony driving under the influence and negligently causing Richardson's

death. Zoerner was tried, convicted, and sentenced to twenty years in prison by the Hancock County

Circuit Court in March, 1996. On appeal, Zoerner raises the following issues for consideration by this

Court:

A. Whether the trial court erred in granting the State's motion to limit the cross-examination

of the witness, Michael Moran, prohibiting inquiry as to these previous convictions and

interest, bias or motive as such matters might affect his credibility?

B. Whether the trial court erred in allowing into evidence the results of the intoxilyzer tests in

the absence of the testimony of the officer who calibrated the machine and over the objection
of defense counsel; thereby, depriving the defendant of his constitutional right of

confrontation?

C. Whether the trial court erred in allowing rebuttal testimony by the investigating officer

concerning the results of a Mississippi Crime Lab test report; thereby depriving the defendant

of his constitutional right of confrontation?

D. Whether the State failed to disclose possible exculpatory evidence in the nature of an

eyewitnesses to the accident?

¶2. The dispositive issue in this case is the exclusion of the prior burglary convictions of the State's

main witness, Michael Moran. This Court finds that the trial judge erred in excluding Moran's prior

burglary convictions, because the circumstances surrounding the convictions were extremely

probative of Moran's propensity to tell the truth and his bias or motivation to testify in favor of the

State. For this reason, the case is reversed and remanded. The other issues raised by Zoerner are

without merit, but will be addressed, to the extent that discussion of these issues could provide

guidance on remand for a new trial.

II. LEGAL ANALYSIS

A. Whether the trial court erred in granting the State's motion to limit the cross-examination

of the witness, Michael Moran, prohibiting inquiry as to these previous convictions and

interest, bias or motive as such matters might affect his credibility?

¶3. Zoerner first contends that the trial judge erred by granting the State's motion in limine to

exclude evidence of Moran's three prior burglary convictions. The record reflects that, on January 13,

1995, Moran pled guilty to three counts of burglary. The State recommended that Moran be

sentenced to ten years in prison on the first count, to run consecutively with seven years in prison on

the second count, to run concurrently with seven years in prison on the third count, and that the

sentence be suspended and Moran placed in the house arrest program, with three years probation to

follow. The trial judge deferred sentencing, so that Moran could be evaluated for the house arrest

program.

¶4. Approximately five months after Zoerner's accident, on February 7, 1995, the authorities took

Moran from his cell and asked him to give a statement regarding Zoerner. Moran, who was awaiting

sentencing on the burglary charges gave a recorded statement, which implicated Zoerner in

Richardson's death. On March 29, 1995, the trial court determined that Moran was not eligible for

house arrest, and Moran was placed on probation. On April 20, 1995, Moran violated the terms of

his probation. His probation was revoked, and he was sent to the penitentiary.

¶5. The trial judge granted the State's motion to exclude the prior convictions and found as follows:

The Court finds that it is most significant that this potential witness pled guilty in January of '95

and received a recommendation from the State, and it was only subsequent to that that a

statement was obtained, and simply because he did not qualify for house arrest, he was then

placed on probation and ended up revoking that, and I understand has been sentenced to the

penitentiary. . .
Based on those specific facts, I don't think it is proper impeachment. Further, even if it may be

proper it is the Court's opinion under [M.R.E.] 609 that the prejudicial effect would far

outweigh its probative value. We are not going to get into it. You have made your objection

and your request for the record.

¶6. On appeal, Zoerner contends that he should have been allowed to introduce the convictions, in

order to impeach Moran's credibility and his motive for testifying. In support of this contention, he

cites M.R.E. 616, which provides: "For the purpose of attacking the credibility of a witness, evidence

or bias, prejudice, or interest of the witness for or against any party to the case is admissible." The

State argues that Moran had already been sentenced for the other crimes, and had no motive to

testify against Zoerner.

¶7. "M.R.E. 609 details the circumstances under which prior convictions may be used for

impeachment purposes." Wilcher v. State, 697 So. 2d 1087, 1094 (Miss. 1997). For crimes such as

burglary, that rule provides:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of

a crime shall be admitted if elicited from him or established by public record during crossexamination but only if the crime (1) was punishable by death or imprisonment in excess of one

year under the law under which he was convicted, and the court determines that the probative

value of admitting this evidence outweighs its prejudicial effect on a party . . .

M.R.E. 609 (a)(1).

"The relevancy and admissibility of evidence are largely within the discretion of the trial court

and reversal may be had only where that discretion has been abused." Johnston v. State, 567

So.2d 237, 238 (Miss.1990). The discretion of the trial judge, however, must be exercised

within the boundaries of the Mississippi Rules of Evidence. Johnston, 567 So.2d at 238. See

M.R.E. 103(a), 104(a).

M.R.E. 611(b) allows wide-open cross-examination so long as the matter probed is relevant.

M.R.E. 611(b), Comment; State Highway Com'n of Miss. v. Havard, 508 So.2d 1099, 1102

(Miss.1987). A judge may limit cross-examination to serve one of the purposes stated in

M.R.E. 611(a), to wit: to make the examination effective for ascertaining the truth, to avoid

waste of time, and to protect witnesses from harassment or undue embarrassment. M.R.E.

611(b), Comment; M.R.E. 611(a). See also Sayles v. State, 552 So.2d 1383, 1386 (Miss.1989)

.

Johnston v. State, 618 So. 2d 90, 93-94 (Miss. 1993).

¶8. In this case, Moran faced three counts of burglary. He cooperated with the police in Zoerner's

case, and he was only sentenced to probation. Moreover, Moran was the State's key fact witness. His

testimony is the only evidence that Zoerner drove negligently the night Richardson was killed, and his

story is uncorroborated on many other points.

¶9. This is not a case where the State sought to introduce the defendant's prior conviction to impeach

the defendant, and the unrelated conviction could be highly prejudicial. Rather, this is a case where
the defendant is seeking to impeach the credibility of the State's primary fact witness. The witness's

prior convictions were highly probative of his bias or motive to testify in favor of the State. The

probative value of the evidence clearly outweighs the prejudicial effect, if any, on the parties.

¶10. That is, "[i]n this case the defendant's purpose for developing facts as to this conviction was not

simply to discredit [the witness] because he had been convicted of such a crime (which may very well

have been inadmissible under some provision of Rule 609), but to ferret out any motive or reason

[the witness] might have to be such a favorable state witness." Bevill v. State, 556 So. 2d 699, 713-

14 (Miss. 1990).

¶11. In addition, "[e]vidence that a material witness has received favored treatment at the hands of

law enforcement authorities, particularly where that witness is himself subject to prosecution, is

probative of the witness' interest or bias and may be developed through cross-examination or

otherwise presented to the jury." Suan v. State, 511 So. 2d 144, 147-48 (Miss. 1987) (citing Malone

v. State, 486 So.2d 367, 368-69 (Miss.1986); Hall v. State, 476 So.2d 26, 28 (Miss.1985); Barnes

v. State, 460 So.2d 126, 131 (Miss.1984); King v. State, 363 So.2d 269, 274 (Miss.1978); Sanders

v. State, 352 So.2d 822, 824 (Miss.1977)).

¶12. Therefore, the trial judge abused his discretion by excluding Moran's previous convictions.

B. Whether the trial court erred in allowing into evidence the results of the intoxilyzer tests in

the absence of the testimony of the officer who calibrated the machine and over the objection

of defense counsel; thereby, depriving the defendant of his constitutional right of

confrontation?

¶13. The accident occurred September 17, 1994. Over defense objections, the State introduced the

intoxilyzer calibration certificates issued by the Mississippi Highway Patrol dated September 6, 1994,

and October 4, 1994. Zoerner contends that his right to confrontation was violated by the

introduction of these certificates, in the absence of the calibrating officer. However, this argument

was squarely rejected in the recent case of McIlwain v. State, 700 So. 2d 586 (Miss. 1997).

Therefore, Zoerner's argument is without merit. See McIlwain, 700 So. 2d at 591.

C. Whether the trial court erred in allowing rebuttal testimony by the investigating officer

concerning the results of a Mississippi Crime Lab test report; thereby depriving the defendant

of his constitutional right of confrontation?

¶14. Throughout the investigation and the trial, Zoerner maintained that he hit a mailbox the night

Richardson was killed. During redirect examination, Zoerner's attorney asked him at length if the

police ever found blood or human tissue on the car Zoerner was driving. Then, the following

exchange occurred between Zoerner and his attorney:

[BY THE DEFENSE ATTORNEY]: Has there ever been, to your knowledge, in this case or

from the police, a lab report from the Crime Lab to show, or a Crime Lab technician testify that

they had blood or human tissue anywhere on the car?

[BY ZOERNER]: No, sir.

¶15. Over defense counsel's objection, the State, during cross-examination, asked Zoerner if he
recognized "State's Exhibit 12" for identification (the Crime Lab Report). Zoerner stated that he did

not. Also over defense counsel's objection, the State recalled the investigating officer as a rebuttal

witness. The officer testified that he sent a sample of Zoerner's broken windshield to the Crime Lab,

and that he received a report from the Lab, which indicated that the glass contained matter of human

origin. The report was marked for identification, but was never admitted as evidence.

¶16. On appeal, Zoerner contends that his right to confrontation was violated when the results of the

lab report were introduced without the testimony of the lab technician who prepared them. He cites

cases which are based on the premise that "[o]nly when hearsay evidence qualifies under a 'firmly

rooted hearsay exception' can it be admitted over a right to confrontation objection by the

defendant." See Gossett v. State, 660 So. 2d 1285, 1296 (Miss. 1995) (quoting Ohio v. Roberts, 448

U.S. 56, 66 (1987)).

¶17. However, the report was not introduced as evidence. Moreover, it is not hearsay, as it was not

introduced to show the truth of the contents of the report, but, rather, the existence of the report. In

addition, Zoerner opened the door for the rebuttal evidence by his testimony on redirect examination.

See Smith v. State, 530 So. 2d 155, 162 (Miss. 1988). See also James v. Illinois, 493 U.S. 307, 312

(1990) (even in more egregious cases, where the disputed evidence is illegally obtained, a defendant's

statements made in response to proper cross-examination reasonably suggested by the defendant's

direct examination are subject to otherwise proper impeachment by the government, albeit by

evidence that has been illegally obtained and that is inadmissible on the government's direct case, or

otherwise, as substantive evidence of guilt).

¶18. Zoerner opened the door for this evidence when he testified on redirect that he was unaware of

such a report. This created the misimpression that no such report existed. The State was within the

proper scope of rebuttal, when it introduced evidence of the report's existence. See Gallion v. State,

517 So. 2d 1364, 1372 (Miss. 1987) ("No accused should be permitted to deliberately mislead the

jury when he knows precisely that the State has in its possession evidence to contradict him, and not

expect the State to offer such evidence before the jury [in rebuttal]"). For these reasons, this issue is

without merit.

D. Whether the State failed to disclose possible exculpatory evidence in the nature of an

eyewitnesses to the accident?

¶19. After Zoerner's notice of appeal had been filed, the defense attorney apparently became aware of

additional eyewitness testimony. Because defense counsel will have ample opportunity to develop this

testimony on remand, this issue need not be addressed.

III. CONCLUSION

¶20. The defendant should have been allowed to use witness Moran's prior convictions for

impeachment purposes. Therefore, this case is reversed and remanded for a new trial, to be

conducted in a manner consistent with this opinion. The other issues raised in this appeal are without

merit.

¶21. REVERSED AND REMANDED.
PITTMAN, P.J., ROBERTS, MILLS AND WALLER, JJ., CONCUR. BANKS, J., CONCURS

IN PART WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN, P.J. McRAE,

J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN, P.J.

SMITH, J., NOT PARTICIPATING.

BANKS, JUSTICE, CONCURRING IN PART:

¶22. I agree with the result reached by the majority and its reasoning for reaching that result. I write

separately to note that I do not agree with the resolution of the issue of hearsay evidence of a lab

report. We have held that a party cannot "open the door" to hearsay. Murphy v. State, 453 So. 2d

1290, 1294 (Miss. 1984). To the extent that the majority adopts a different rule, I disagree.

SULLIVAN, P.J., JOINS THIS OPINION.

McRAE, JUSTICE, DISSENTING:

¶23. While the majority's decision correctly reverses the case, it does not provide proper guidance for

the trial court to follow on remand. I disagree with the finding of admissibility of the double hearsay

evidence given by the investigating officer with regard to the results of the lab report on Zoerner's

broken windshield as well as with the introduction of the intoxilyzer calibration certificates. Because

of the unresolved confrontation clause problems in these issues, I respectfully dissent.

¶24. The investigating officer testified that he received a lab report indicating that glass from

Zoerner's broken windshield contained matter of human origin. The report was not entered into

evidence and the technician who prepared the report did not testify. Zoerner raised a timely sixth

amendment confrontation clause objection to the officer's hearsay testimony. Gossett v. State, 660

So. 2d 1285, 1296 (Miss. 1995). See also Spears v. State, 241 So. 2d 148, 149 (Miss. 1970)

(reversible error where doctor's testimony relied on lab report and technicians who prepared report

were not offered as witnesses).

¶25. As Justice Banks points out in his separate opinion, a party cannot "open the door" to the

admission of hearsay evidence. Murphy v. State, 453 So. 2d 1290, 1294 (Miss. 1984). Thus, the

majority is incorrect in its conclusion that the officer's testimony about the lab report was admissible

because Zoerner opened the door by his testimony on redirect examination. As this Court explained

in Murphy,

There is no hearsay exception based upon the scope of examination. You may allow its

admission by failing to object to it, but you simply cannot "open the door" to hearsay. Hearsay

is incompetent evidence. You may open the door for collateral, irrelevant, or otherwise

damaging evidence to come in on cross-examination, Reddix v. State, 381 So. 2d 999 (Miss.

1980); Jefferson v. State, 386 So. 2d 200 (Miss. 1980); Sanders v. State, 219 So. 2d 913

(Miss. 1969), but Mississippi recognizes no rule of law that allows double hearsay to be

brought in through this open door.
Id. at 1294. To now say that admission of the hearsay testimony was well with the scope of rebuttal

is not consistent with our case law or our Rules of Evidence.

¶26. I further disagree with the majority's finding that Zoerner's assertion that his right to

confrontation was violated by the introduction of intoxilyzer calibration certificates was "squarely

rejected" by this Court's opinion in McIlwain v. State, 700 So. 2d 586 (Miss. 1997). The majority

misreads McIlwain. The case deals only with what is required to lay a proper evidentiary foundation

for admission of intoxilyzer calibration certificates, not whether admission of calibration certificates

without the testimony of the calibrating officer passes constitutional muster. Nowhere in the

McIlwain opinion was the confrontation clause issue even discussed.

¶27. Because the majority makes such broad evidentiary rulings without any regard for the

defendant's confrontation clause rights, I respectfully dissent.

SULLIVAN, P.J., JOINS THIS OPINION.