IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-KA-00342-SCT TOBIAS COLEMAN a/k/a TOBIAS R. COLEMAN a/k/a TOBIAS RAY

S HUN COLEMAN a/k/a TABIAS COLEMAN a/k/a TABIAS RAY SHUN COLEMAN

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 02/01/2017 TRIAL JUDGE: HON. JAMES T. KITCHENS, JR. TRIAL COURT ATTORNEYS: STANLEY ALEXANDER GERALD ALEXANDER MUMFORD MARK TYLER JACKSON KATIE NICOLE MOULDS SCOTT E. ROGILLIO COURT FROM W HICH APPEALED: OKTIBBEHA 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: SCOTT STUART DISTRICT ATTORNEY: SCOTT W INSTON COLOM NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED - 10/25/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. WALLER, CHIEF JUSTICE, FOR THE COURT: ¶1. A jury f

ound Tobias Colem an guilty of aggravated a ssault f or shooting a m an in the head. The judge sentenced h im to twenty y ears’ i m p risonme n t , w i th f

ive y ears suspended. Colem an now appeals.¶2. W e f ind that the trial court com m itted reversible error by adm itting into evidence an

u n d a t e d, g rainy 1 Facebook im age taken o f the def endant Tobias C olem a n holding what
appears to be a handgun, y ears b ef ore the alleged crim e, through the t estim ony of a witness who denied ever having s een C olem an’s Facebook page or the photograph in question. W e reverse and rem and f

or a new trial. FACTS AND PROCEDURAL HISTORY ¶3. On March 3 0 , 2014, Zacharias Blanchard was shot in the head on the grounds of Club Rock, located i n O k

t ibbeha County just outside of Starkville, Mississippi. Blanchard was taken to the Oktibbeha County Hospital by Joanna Burchf ield, who had f

ound him ly ing next
to her car and bleeding. Blanchard w as transf erred b y helicopter to the University of Mississippi Medical Center in Jackson f or treatm ent by a neurosurgeon. ¶4. Upon returning to S tarkville, Blanchard identif i ed Tobias Colem an as the m an who shot him

. 2 A grand jury c harged C olem an with aggravated assault. Colem an was tried over two day s in January

2017.

1 “If p h o to g rap h s are ‘g rain y ,’ th ey are n o t c lear b ecau se th e m a n y b lack an d w h ite o r co lo u red d o ts th at m a k e u p t h e im ag e can b e s een .” G ra in y , C am b rid g e D ictio n ary ( 2018) , ht t ps : / / di c t i ona r y . c a m b r i dge

. or g/

us / di c tio n ary

/en g lish / g rain y ( l a s t vi s i t e d Se pt e m be r 2 7 , 2 0 1 8 ).

2 It is u n d is p u t e d t h a t B lan ch ard an d C o lem an h ad a h isto ry . B lan c h ard claim ed at trial th at C o lem an p rev io u s ly h ad so u g h t to b u y a c ar f ro m h im , an d u p o n realizin g h e co u ld n o t af f o rd it, h e tried to b u y th e car w ith d ru g s. Wh en B lan ch ard ref u sed , C o l em an tried to sh o o t B lan ch ard , b u t h is g u n j am m ed

. C o lem an d isp u ted B lan ch ard ’s claim an d stated th at, alth o u g h h e an d C o lem a n a t o n e p o in t “h a d b e e f o v e r a f em ale,” th e y w ere n o lo n g er en em ies. 2¶5. Blanchard testif i ed that on the n ight of March 30, 2014, he a rrived at Club Rock under the inf luence o f “Molly ,” a drug d e scribed by Blanchard as a “ sexual enhancer,” a nd alcohol. Blanchard was a ccom

p anied by his f

r i e n d S t ephen Thom as J r . Once inside Club Rock, Blancha r d ’ s c ousin told him that Colem an and a group of f riends had trapped him in the bathroom

. To t ake up f

or his co u s in, Blanchard walked outside t o conf r ont Colem an. Blanchard y elled at C olem an “f r om a d istance,” but he could not r e c a ll what he said. Blanchard also could not recall whether the a rea outsid e t h e c l u b w as well-lit or dark, although he rem em

bered that Colem an w a s wearing a black t-shirt a nd black j eans. Upon

s e e i n g Colem an walking towards him , Blanchard testif ied that he did not protest or r u n because “if i t was [ h is] tim e, i t was [ his] tim e.” Blanchard stated that Colem an had “walked
upon [ him ]” f

rom behind and shot him “f rom the back.” W hen asked why he would walk to

a d ark area and t

urn his back on a person that Blanchard alleged had previously tried to kill him , Blanchard responded that he “respect[ ed] all and f e ar[ ed] not.” ¶6. D r . A l l e n B u t t s w a s the State’s s econd witness. He e x am ined Blanchard a t t h e Oktibbeha County Hospital. He determ ined t h a t Blanchard h ad been injured by a gunshot wound that h ad entered through his f orehead, a nd he stabilized Blanchard prior to his transf er to Jackson. ¶7. The State’s last w itness was Lieutenant B r e t t Wa t s o n , a n i n v e s t i g a t or with the Oktibbeha County S herif

f ’ s O f f ice. He t estif

ied that between eight hundred to one thousand people were at Club Rock on March 3 0, 2014. Five people, including Blanchard, had been shot that night. Investigators f ound shell casings f

rom three d if

f erent calibers of guns—.380,

3.40, and .45 caliber. L ieuten a n t Wa t s o n t estif ied that the dif

f erent c a libers of a m

m unition

m eant there likely had been m u ltiple s hooters that night. S hell casings were f ound i n several dif f erent locations, but no DNA sam ples were recovered f

rom the casings. The area where Blanchard was s hot contained both .40 and .45 c a l i b e r s h e l l casings, which, according to Lieutenant W atson, indicated that there had been m o re than one shooter. Lieutenant W atson and other i nvestigators c onducted interviews with the shooting victim s, but m o st patrons had lef t the scene bef

ore law enf

o rcem ent arrived. Investigators received nam es, nicknam es, and tips about potential shooters. None were ever conf irm ed. ¶8. Lieuten a n t Wa t s o n i n t e r v i e w e d B l a n c h ard af ter h e returned to Starkville f rom Jackson. B lanchard p ositively identif ied Colem an as the shooter, h aving p icked h im out of a photograph lineup. ¶9. Af t e r t h e S t ate r ested, the def ense called Marcus Johnson. Johnson testif ied that he had b een at Club Rock that night and had witnessed the shooting. A ccording t o Johnson, Blanchard and Thom as were involved i n an altercation with another m an. Johnson testif ied that both Blanchard and Tho m as brandished their w eapons and f i red at a “dude with dreads[ .]” But Johnson claim ed that the m an was not Colem an. ¶10. During cross-exam ination, the State asked Johnson how long he had known Colem an

a n d i f he had ever seen Colem an with a gun. Johnson testif ied h e had known Cole ma n several y ears and h a d never seen him with a gun. The State then asked if J ohnson had ever

seen C o l em an’s Facebook page. Johnson answered that he had never seen Colem an’s Facebook page because h e h ad m any “Facebook f riends.” In r e s p o n se, the S tate sought to

4introduce photographs f rom Colem an’s Facebook page. Colem a n objected, a nd the jury was excluded. The trial court r eviewed the photographs—one sho w e d C olem an holding a handgun; the other showed him h olding a rif l e. W h ile the trial court excluded the photograph

s h o w i n g Colem an holding a rif le, the trial court f

ound the other photograph to be relevant because it showed Colem an holding a black, sem iautom atic pistol “in his lif e.” ¶11. Colem an testif

ied on his own behalf

. He s t ated that the Facebook picture prof f ered b y t h e State had b een taken f o ur y ears bef

ore the crim e when he w a s still in hig h s c h o o l

. Colem an also st a t e d that he was not in possession o f a pistol the night of the shooting. Colem an denied Blanchard’s allegations that h e w a s the shooter and claim ed to have f led Club Rock upon hearing the gunshots. ¶12. The jury f

ound Colem an guilty of aggravated assault. The judge sentenced Colem an
to twenty y ears in prison, with f ive y ears suspended. T he trial court denied Colem an’s m otion f or a new trial. Colem an now appeals. DISCUSSION ¶13. On appeal, Colem an argues that the p hotograph, introduced through a w itness who had no k nowledge of t h e p i s tol and u sed as im peachm ent evidence, was irrelevant, inf lam m atory , and prejudicial. 3

3 B ecau se th is issu e is d isp o sitiv e, w e n e ed n o t ad d r ess issu es II an d III. T h e erro rs assig n ed o n ap p eal are as f o llo w s: I. Wh eth er a p h o t o g rap h reco v ered f ro m C o lem an ’ s F aceb o o k acco u n t w as e r r o n eo u s w h en th e w itn ess it w a s u sed to im p each testif

ied to h av in g n o k n o w led g e eith er o f

th e p h o to g rap h o r o f

C o lem an o w n in g a g u n . II. Wh eth er th e trial c o u rt e r r e d in lim itin g C o lem an ’s cro ss-ex am in atio n o f 5¶14. The photograph was prof f ered by the State to im

peach the def

ense witness, Marcus Johnson, who testif

ied that he had never seen Colem an with a gun bef ore. The photograph

was an undated, grainy im a ge purportedly taken f r om Col e m a n ’ s F a cebook page. The f ollowing exchange took place b e t w e en the State, the trial court, and def ense counsel regarding whether photograph should be adm itted: [ The State]: My question to the witness was, h a d h e e v e r b e e n o n

Tobias Colem an’s [ F ]acebook p age. Those pictures were taken f rom his [ F]acebook page. And I was going to a sk him did he recognize Tobias f rom those photographs. 4
BY THE COURT: Okay [ The State]: A n d a l s o I was g oing to ask him h as h e ever see n h i m

with a gun? That was going to be the f irst question. Ask [ sic] the Court can see in both of those photographs, the def e ndant is holding a gun, both a handgun and a rif l e. ¶15. In response, d ef

ense counsel objected to the adm ission of the photograph on the basis of r elevance. The f

ollowing exchange occurred between def ense counsel and the trial court: [ Def ense Counsel]: Judge, if y ou w ill look at his hair on that picture, y ou c an

tell that picture is y e ars and y ears old. BY THE COURT: W ell, f rom today , sure. I m ean –

L ieu ten an t Wa t s on r e ga

r d i ng h is n o tes th at d esig n ated o th er p o ten tial su sp ects in th e sh o o tin g . III. Wh eth er th e v erd ict w as co n trary to th e w eig h t o f

th e ev id en ce.

4 W hile the issue of whether Colem an’s Facebook page was authenticated properly is not bef ore th is Court on a

ppeal, we acknowledge that at no point during the trial did the State seek to ascertain when the picture h ad been uploaded. See S m i th v. State , 136 So. 3d 424, 433 (Miss. 2014) (holding that the court abused its discretion because the State f ailed to provide evidence other than the def endant’s Facebook prof

ile pictu r e i n determ ining whether to authenticate m essages purportedly sent by the def

endant through Facebook). 6[ Def ense Counsel]: That sh o u l d b e r elevant when he was carry ing a pistol,

too. Not that he’s ever used it in his lif e. BY THE COURT: Wh a t i t s h o w s i s , h i m [ Colem an] with a b l a c k

- s e mi

autom atic pisto l in h is life

. And it’s clearly him [ Colem an]. (Em phasis added.) ¶16. W e are troubled tha t t h e t r i a l court did not apply the sam e logic when i t ref used to allow Colem an t o i mp e a c h the victim , who tested positive f or m arijuana the night of the shooting. Colem an sought to c r o ss-exam ine Blanchard regarding a toxicology screening conducted by the hospital that d em onstrat ed that Blanchard, the only ey e w itness to the shooting, tested positive f or m arijuana the night in question. T he f ollowing ex c h a nge dem onstrates inconsistent reasoning by the trial court: [ Def ense Counsel]: So, would the Co u r t b e s a t i s f i e d if h e say s he sm oked weed two day s prior b ut n ot t h a t day b ut it was in his sy stem ? Does he need to testif y that he’s never s mo k ed weed in his lif

e ? [ The State]: No, sir. That’s not r e l e v a n t w h e t h e r o r n o t he’s ever

smoked weed in his life

. BY THE COURT: That’s exactly right. W hat y ou’re seeking to do i s, y ou’re

seeking to show that he was i nebriated. A nd I understand that. You’re hoping to show that he w a s

– his recollection of things would not be good because he was im paired som ewhat. Fair enough. That’s allowable. But y ou can’t do it through that docum ent with him

. [ Def ense Counsel]: I understood that y ou should be able to im peach som e one with any thing.
BY THE COURT: Then y ou understood wrong. W ho taught y ou evidence? (Em phasis added.)

7¶17. Not only di d B l a n c h a r d

— t h e o n l y ey ewitness to the s hooting—test p ositive f or

m arijuana the night i n question, but he also t e s t i f i e d that he taken “Molly ” and had been drinking alcoho l the e ntire day bef ore arriving at Club Rock. W e f ail to see how the trial

court could at one point m ake the determ ination that, because Colem an had wielded a gun “in his lif e,” a blurry , f

o ur-y ear-old photograph taken f rom Facebook was relevant, but that a drug test conducted on Blanchard the night o f the shooting was not, because “whether or not he’s ever sm oked weed in his lif e” was im m aterial. 5 ¶18. The trial cour t a l l o w e d t h e S t a t e to continue questioning Johnson regarding the photograph, and Johnson testif ied that he had never seen Colem an’s Facebook page. W hen shown the picture by the State, he identif ied C o lem a n but said he l ooked m uch y ounger than h e h ad l ooked a t the tim e of shooting. W hen the State asked Johnson what Colem an wa s holding, Johnson said tha t i t “ m i ght be a BB g un” and that, if it was a gun, he c ould not determ ine what ty

pe it was. W i th respect to the color of the weapon, Johnson testif ied that it appeared to be silver. ¶19. The State contends that the issue of whether it was proper to im peach Johnson with the photograph was n ot preserved by Colem an during that portion of th e t r i a l

. H owever,

5 A lth o u g h n o t b ef

o re th is C o u rt, su b stan tial au th o rity su p p o rts C o lem an ’ s attem p ted cro ss-ex am in a tio n o f B lan ch a rd w ith th e to x ico lo g y te s t

. S e e B ro w n v. S ta te , 6 9 0 S o . 2 d 2 7 6 , 2 8 6 (M iss. 1 9 9 6 ) (h o ld in g th at a d ru g test w as ad m issib le b ased o n th e f act th at it w as relev a n t f o r th e p u rp o se o f p ro v in g d i screp an cies in [ th e d ef en d an t ] ’s statem e n t to p o lice); see a lso N

ew ell v. S ta t

e , 4 9 S o . 3 d 6 6 , 7 3 ( M iss. 2 0 1 0 ) (f in d in g th e trial co u rt’s ex clu sio n o f a s h o o tin g v ictim ’s b lo o d to x ico lo g y resu lts w as r ev ersib l e e r ro r b e cau se th e trial co u rt’s ref u s al to ad m it th e to x ico lo g y screen in g p rev en ted th e d ef en d an t f ro m f u lly p resen tin g h is d ef en se th eo ry ); B

y rd v. S ta te , 1 5 4 M iss. 7 4 2 , 1 2 3 S o . 8 6 7 , 8 6 9 ( 1 9 2 9 ) (h o ld i n g th at th e d ef en d a n t can raise th e v ictim ’ s in to x icatio n to d em o n strate all th e co n d itio n s ex istin g at th e tim e an d g iv in g rise to th e k illin g , in clu d in g th e v ictim ’s m en tal state). 8im m ediately a f ter Johnson testif

ied that the gun portray ed in the photograph appeared to be silver, the f

o llowing exchange took place: [ The State:] W hen was the last tim e y ou had y our ey es checked? [ Johnson:] I don’t rem em b er. [ The State:] Okay . Do y ou have any problem with color vision? [ Johnson:] No sir. [ The State:] Okay

. And y ou’re telling this jury – y ou’re

telling them

–
[ Johnson:] You’re telling m e that don’t look silver? [ The State:] No, sir, it does not. Does that gun look silver to y ou? [ Johnson:] Yes, sir. [ The State]: Your Honor, now I believe that the pho t ographs should

go into evidence f

or two reasons. One, it should go into evidence to

– because [ Johnson] stated earlier, h e had never seen him w ith a gun, to impeach –

. . .

. . . [ Def ense Counsel]: Your H onor, I would o bject to the picture, again . There’s

a lack of foundation

. There’s a lack of r elev a n c y . A nd it’s inadm issible hearsay

in this m a t ter. My client t e l l s me that he has a picture that’s u nblurred [ sic] that would show that the actual g un is s i lver. And I asked that he be allowed to produce it. [ The State]: Your client can take the stand and t estif y to whatever he wants to.

9BY THE COURT: Okay

. I will allow the pict u r e to be introduced. I will at l east allow y ou to inquire o f the witness, especially i n lig h t o f the f

act that Mr. B lanchard [ the victim ] has testified that there was a black semi-automatic pistol that your client had on that particular n ight

. And t h e r e was an a ttem pt to im peach h im or he w a s im peached or allowed to – So I will allow this to com e in. (Em phasis added.) ¶20. Theref

ore, the objection by Colem an p reserved the issue

. See Carter v . State , 722 So. 2d 1258, 1261 (Miss. 1998) (holding that a def ense objection on the grounds of relevance, but not specif

ically on the grounds of

Rule 404(b), was not procedurally barred since Rule 404(b) is an issue o f relevance a nd the def ense h ad o bjected on the grounds of relevance). ¶21. T h e t r i a l t r a n script above also illustrates that the trial court based its evid e n t i a r y decision, in part, on Blanchard’s testim ony . Blancha r d b e l i e v ed the handgun used by Colem an to be of a . 40 or . 45 caliber. H o w e v e r , w h en asked on cross-exam ination if he recalled giving a statem ent to the police in which he s t a t e d C olem an was carry ing a .380 caliber w eapon, Blanchard r eplied that he could n o t r ecall. Upon later taking the stand, Colem an t estif

ied that, while he was in the p hotograph, it had been taken f our y ears prior to the shooting; he was holding a neighbor’s weapon sim ply “try i ng to look cool.” ¶22. In support of the adm ission of the Facebook p hotograph, t h e S t a t e r elies on both Grant v. State , 762 So. 2d 800, 805 ( M i s s . C t

. App. 2 000), and Fraise v. State , 17 So. 3d 160, 166 (Miss. Ct. App. 2009). In those cases, a lso c ited b y the concurrence, the Court of Appeals f ound that the probative value of photographs in wh i c h t h e def endants appeared

1 0holding g uns h a d n o t b e e n outweighed suf f iciently by the prejudicial ef f ect. The State contends that e ach case “directly addressed” the issue b ef ore this Court; however, both cases are distinguishable. ¶23. In Grant , the def

e ndant was on trial f

or arm ed robbery and possession of a concealed
weapon by a convicted f elon. G rant , 762 So. 2d at 803. At t r i a l, not only did two
ey ewitnesses testif

y that Grant had been holding the gun, but o ne ey ewitness testif ied with particularity about the d istinctive f eatures of the g un i n question. Id. at 805. Specif ically , the witness described the gun as a “.357 [ caliber] that had a black handle with m olded h and grips and an em

blem im printed on the side of the handle.” I d . at 8 03. Further, the gun recovered f rom the crim e scene a

ppeared identical to the g un docum ented in the photograph. Id. at 805. As a result, the court f

o und the adm ission of the photograph to have been m ore p r obative than prejudicial. Id. at 806. ¶24. Likewise, in Fraise , the def endant also was on trial f

o r arm ed robbery and possession of a weapon by a convicted f elon. Fraise , 17 So. 3 d at 162. Three ey ewitnesses to the arm ed robbery d e scribed the g u n u s e d b y the assailant as “black a nd silver in color.” Id. at 166 (em phasis a d d e d )

. As in Grant , the gun in the photograph recovered f rom the def

endant’s hom e appeared identical to the distinctive f e a t u r e s of the g un described in the three
ey ewitnesses’ t estim ony . Id. Theref ore, the court f

ound the photograph highly probative and held its adm ission had not been an abuse of discretion. Id. ¶25. Unlike Grant and Fraise , h e r e , no ey ewitnesses other than the victim testif ied that Colem an h ad been the shooter. Neither the gun nor the caliber of the g un used in the shooting

1 1could be ascertained f rom the e vidence. Additionally , the color of the weapon and the exact kind o f weapon depicted in the picture were d isputed. Most im portantly , Colem an testif

ied that the photograph had been taken f our y ears prior to the shooting. The holdings in Grant and Fraise are thus distinguishable. ¶26. The concurrence also cites Ross v. State , 954 So. 2d 968, 993 ( Miss. 2 007), in which this Court held that “Rule 4 01 is construed broadly in f avor of a dm itting evidence with even slight probative value.” R espectf ully , however, Ross is not a p plicable here. Fi r st, in Ross , the def endant sought to suppress the introduction of what w as alleged to have been the actual

m urder w eapon, not a grainy , undated photograph f rom Facebook that the testif y ing witness knew nothing about. I

d . Second, an ey ewitness t estif ied that the def

endant had thrown the
weapon in the sam e ditch in which it eventually was recovered af t er the def

endant allegedly had adm itted to the m

urder. Id. Third, the weapon was a .22 caliber p i s t o l, which not only

was f ound in the ditch b e hind where the victim w as killed, but also was of the sam e caliber as the weapon responsible f or the victim ’s death. I

d . F ourth, the State identif ied the owner of the w eapon and dem onstrated that the def endant had access to it. Id. Finally , the issue was
not preserved properly by the def endant a t t r i al and, thus, was procedurally barred f rom appellate review. Id. Even so, because Ross had been charged with capital m urder, a plainerror analy sis was conducted to d eterm ine w h ether the adm ission o f the weapon was proper. Id. at 992. As such, this Court f ound that, “[

u] nder the circumstances , the trial court did not abuse its discretion in adm itting the pistol into evidence.” Id. at 993 (em phasis added).

1 2¶27. This Court is m indf ul of the wide discretion af f o rded a trial judge with respect to the adm ission and exclusion of evidence. But this Court h as a constitutional duty to enf orce the rules prom

ulgated by this Court “f

airly , evenly and predictably .” Patton v. State , 34 So. 3d 563, 572 (Miss. 2010). The bench and b ar are entitled to rely on this Court “to apply the rules no less diligently

to the courts than to the lawy e rs and litigants.” Id. ¶28. W h en preju d i c i a l e v i d e n c e is adm itted that f ails to link the def

endant t o the crim e alleged, the decision of the trial court to adm it such e v i d e n c e constitutes an abuse of discretion. See Walker v. State , 878 So. 2d 9 13, 917 ( Miss. 2004) (holding that the trial court erred in adm itting a towel a llegedly containing the def e ndant’s sem en because “the [ State]’s f ailure to positively c onnect the sem en on the towel to [ the def e ndant] render[ ed] the towel inadm issible”). ¶29. Though a n abuse-of -discretion standard af

f ords great d i s c r e t i o n to the trial judge, “[ t]his Court has not hesitated to invoke its authority to order a new trial and allow a second jury to pass on the e vidence where it considers the f i rst jury ’s determ ina t i o n o f guilt t o be based on extrem ely weak or tenuous evidence[ .]” Dilworth v. State , 909 S o . 2 d 731, 737 (Miss. 2005). ¶30. A f

actually analo g o u s d e c i s i o n r e l a t i n g t o t h e a d mi ssion of h ighly prejudicial photographs is the Florida S uprem e Court’s ruling in Agatheas v. State , 77 So. 3d 1232 (Fla. 2011), in which the Florida Suprem e Court considered w hethe r t h e a d m ission of photographs of a gun recovered f rom a backpack i n the d ef endant’s p ossession f

i v e y ears af ter the c harged m

urder was error. Id. at 1237. The Florid a S u p r e me C ourt in Agatheas

1 3determ ined that the gun, which was discovered f ive y ears af

ter the crime a nd which had a dif f erent caliber than the bullet c asings f ound at the crim e scene, w as in n o w ay related to the

m urder. Id. ¶31. Moreover, the Florida Suprem e Court in Agatheas held that the g un, along with the photographs of the gun, were not relevant to corroborate the t estim ony o f the State’s witness, the def endant’s f orm er girlf

riend. Id. at 1239. The girlf riend had t estif

ied that the backpack in which the def

endant kept h i s g un was m issing on the night of the m urder. Id. The Florida Suprem e Court f

ou n d t h a t t h e gun recovered f rom the backpack was r elevant only to dem onstrate the def

e ndant’s bad c h a r a cter or p ropensity ; thus, the adm ission of the photographs and t estim ony r egarding the weapon was “unquestionably error.” Id. at 1241. ¶32. H e r e , w e f

a i l to understand the probative value o f a b lurry , undated ph o t o g r a p h showing Colem an, y ears prior to the alleged crim e, holding an unidentif ied weapon—the ty pe and color of which w ere disputed. W e agree with the concurrence that the photograph neither im

peached Johnson’s testim ony regarding whether he had ever seen Colem an with

a g un, nor did i t corroborate Blanchard’s testim ony that he had been s hot by a “ b lack, sem iautom atic w e a p o n . ” Instead, the photograph was adm itted b y the trial court to show that Colem an h ad possessed a pistol a t som e point “ in his life .” Moreover, b ecause no evidentiary connection was established by the State between Johnson’s t estim on y , the F acebook photograph, and the weapon alleged to have been used by C olem a n, the adm i ssion of such

a photograph, as stated so eloquently in Agathe a s , w o u ld be o nly t o “dem onstrate [ the def endant]’s bad character or propensity .” Id. at 1239.

1 4CONCLUSION

¶33. Because the trial court abused its discretion b y a dm itting the photograph, Colem an’s conviction and sentence f or a ggravated assault are reversed, and this case is rem anded to the trial court f

or a new trial. ¶34. REVERSED AND REMANDED

. KITCHENS, P.J., KING, C OLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. MAX WELL, J., CON C U R S I N PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED B Y RANDOLPH, P.J.; WALLER, C.J., AND BEAM, J., JOIN IN PART.

MAX WELL, JUSTICE, CONCURRING IN PART IN RESULT: ¶35. I a g r e e w ith the m a jority that this case should be reversed and rem anded. But t h e problem here is n ot with the photograph itself —it is the m anner in which the State i ntroduced it. I f ind no f ault with the judge’s general discretionary c a ll that the photograph of Colem an brandishing a pistol was of s uf f icient probative value. But I do f ind he erred in adm itting it as im peachm e nt evidence. I write separately to address that notion.
I. Mississippi Rules of Evidence 401 and 403 ¶36. The m ajority re-weighs the e v i d e n c e

— g i v i n g i t s o w n p e r s o n a l v i e w o f t h e photograph’s evidentiary worth. I r e s p e c t fu l l y s u g g e s t this approach is inappropriate because it cuts against the broad discretion grante d t r i a l j udges when m a king general evidentiary calls. “Rule 401 is construed broadly in f avor of adm i tti n g evidence with even slight probative value.” Ross v. State , 954 S o . 2 d 968, 993 (Miss. 2007) (citation om itted) (em phasis added). And this Court has been consistent and clear that trial judges have “sound

1 5discretion” whether to adm it potentially prejudicial e vidence. Baldwin v. State , 784 So. 2d

148, 158 (Miss. 2001). I ndeed, “[ u]nder Rule 403, the exclusion of p rejudicial e v idence is permissive ”—m eaning exclusion of such evidence is not m andated by rule. R oss , 954 So. 2d at 993 (em

phasis a dded). In other words, even in those instances in which “a trial court determ ines that the p rejudicial ef f e ct of evidence substantially outweighs its probative value,
it is not obligated to exclude the evidence , but may do so at i ts discretion .” Id. (em phasis added). ¶37. Blanchard testif

ied that Colem an was the shooter. But t h e a c t u a l p i s t o l w a s n ot recovered, and the b ullet could not be rem oved saf ely f rom Colem an’s head f

or com parison with the recovered s hell casings. Blanchard had a l ready d escribed the pistol a s a black pistol bearing sem iautom atic characteristics. And t h e j u d g e f ound Colem an’s pistol in the pho t o g r a p h to h ave been sim ilar enough to B lanchard’s description t o be r elevant and adm issible. Not only is this a d iscretionary call o n t h e trial judge’s part, but the Court of Appeals has directly

addressed sim ilar f

indings at least twice. ¶38. I n G r a n t v

. State , the C ourt of Appeals af f irm e d a trial judge’s adm i s s i o n o f a photograph of the def

endant “wielding a gun that appears t o be identical to the weapon used in the robbery

. . . .” Grant v. State , 762 S o. 2 d 800, 805 ( Miss. Ct. A p p. 2000). Though the photograph was prejudicial, it was also highly probative. I d. In Fraise v. State , the Court

o f A ppeals again af

f irm ed a trial judge’s decision to a dm it a p hotograph of a def e n d a n t “holding a handgun alm ost i dentical to the one u sed in the robbery .” Fraise v. State , 17 So. 3d 160, 166 (Miss. Ct. App. 2009). Because the photograph depicted the def endant with a

1 6gun sim i lar to the o n e used in the a lleged c r im e, the court deem ed it “highly probative.” Id.

See also U

nited States v. B rooks , 715 F.3d 1069, 1077 (8th Cir. 2013) (photographs showing def endant in possession of a f irearm resem

bling the one u sed in a bank r o b b ery were

a d mi s s i b l e because evidence was intrinsic to charged of f ense); J ohnson v. United States , 701 A.2d 1085, 1 092 (D.C. 1997) ( photograph o f d ef endant holding revolver of sam e caliber

as g u n u s e d i n m

urder was adm issible, even though photograph was m ore than a y ear old, “because the requisite link was m ade between the gun” depicted in photograph and the gun used in the crim e). ¶39. That this particular photograph ma y h a v e b e e n o l d e r perhaps tem pered its weight

som e, but it d id not, in the j udge’s view, im perm issibly overshadow its probative value. Had the photograph been authenticated, introduced by , and adm itted through a proper sponsoring witness during the State’ s c a s e , or perhaps in rebuttal, I would have no concern with its adm ission. But it was not.
II. Im proper Im peachm ent ¶40. Instead, the State tried to shoehorn the p h o t o g r a p h i n evidence af ter it r ested. It waited until the def

ense’s case-in-ch i e f a nd tried to cast the photograph as im peachm ent evidence. This occurred af ter a def ense witness testif

ie d h e had never seen Colem an with

a gun. The problem with adm itting the photograph in this posture was the f act that the witness testif

ied he h ad never visited Colem an’s Facebook page—the site o n w hich Colem an

was alleged to have posted the photograph. A nd the witness had never previously seen the subject photograph. In other words, the witness did not testif y about any

thing f or which the

1 7photograph could be used to im p each him

. S o t h e p h otograph was not proper extrinsic im p eachm ent evidence. The def endant lodged an objection to the photograph’s adm ission

as i m peachm ent evidence, which should h ave been sustained. For this reason, under the f acts of this particular case, I agree with the m ajority that reversal is appropriate.
R A NDOLPH, P.J., JOINS THIS O PINION. WALLER, C.J., AND BEAM, J . , JOIN THIS OPINION IN PART.

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