IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-KA-01244-COA
DAVID LEE LEWIS A/K/A DAVID LEWIS APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/19/2014
TRIAL JUDGE: HON. JEFF WEIL SR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: ERIN S. PRIDGEN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
DISTRICT ATTORNEY: ROBERT S. SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF AGGRAVATED ASSAULT
AND POSSESSION OF A FIREARM AS A
FELON AND SENTENCED TO TEN YEARS
FOR AGGRAVATED ASSAULT AND FIVE
YEARS FOR POSSESSION OF A FIREARM
AS A FELON, WITH THE SENTENCES TO
RUN CONSECUTIVELY, ALL IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
DISPOSITION: AFFIRMED - 04/05/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., FAIR, AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1. On October 3, 2013, Lewis was charged with aggravated assault and possession of
a firearm by a felon. After a two-day trial, a Hinds County Circuit Court jury found Lewis
guilty of both charges. He was sentenced to serve ten years in the custody of the Mississippi
Department of Corrections (MDOC) for aggravated assault and five years for possession of
a firearm by a felon, with the sentences running consecutively. He appeals, arguing that the
exclusion of his testimony unfairly prejudiced him in his ability to adequately prove his claim
of self-defense. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Lewis lived with his domestic companion, Kimberly Gaines, sporadically for
approximately nine years. During this time, Gaines used drugs in his presence; when Lewis
would tell her to stop, Gaines would leave to continue her drug use. On May 11, 2013, when
Lewis refused to let her leave, Gaines called her cousin, Patrick McQuirter. According to
Lewis, when McQuirter arrived he was high on drugs, although he did not witness McQuirter
using drugs. McQuirter attacked Lewis and the two men fell to the ground, causing Lewis
to hit his chin on the concrete steps after McQuirter fell on him. McQuirter then got up and
walked home. Gaines left the house during the altercation.
¶3. McQuirter explained that he was walking home when Lewis and Lewis’s son, Ricco,
drove around the corner onto McQuirter’s street. According to McQuirter, Lewis then
motioned for McQuirter to come to the driver-side window and asked McQuirter why he was
“always getting in [their] business.” McQuirter responded that Gaines was his cousin and
that he had no business putting his hands on a female. McQuirter stated that Lewis then sat
for a few seconds before pulling out a gun and shooting McQuirter in the leg. Lewis then
drove off and left McQuirter in the street.
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¶4. On the other hand, Lewis asserts that, after being attacked by McQuirter, Lewis got
into his vehicle by himself and was only driving down McQuirter’s street to go to another
woman’s house. While he was driving, he realized that his head was bleeding, at which point
he pulled over and reached for a napkin out of the glove compartment. He noticed a gun in
the glove compartment and placed it on the seat beside him. He testified that he did not
know there was a gun in the vehicle until he opened the glove compartment. As he drove off,
he saw McQuirter standing in the middle of the street, refusing to move. According to
Lewis, he was afraid and believed that because McQuirter was high on cocaine, McQuirter
would “take his neck off” if he got near him. As McQuirter approached the driver-side
window, Lewis grabbed the gun and shot McQuirter in the leg. Lewis testified that if he had
not shot McQuirter, he believed McQuirter would have “gotten him.” Lewis then drove off
and left McQuirter in the street.
¶5. Lewis was found guilty of aggravated assault and possession of a firearm by a felon.
He was sentenced to serve ten years for the aggravated assault charge and five years for the
charge of possession of a firearm by a felon, with the terms to be served consecutively in the
custody of the MDOC. Lewis filed a motion for a judgment notwithstanding the verdict, or,
in the alternative, a motion for a new trial, which the trial court denied. Aggrieved, Lewis
now appeals.
DISCUSSION
¶6. Lewis’s sole contention on appeal is that the trial court erred in excluding his
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testimony, specifically that McQuirter was high on drugs at the time of the assault. The trial
court found that the testimony was inadmissable because: (1) Lewis had no personal
knowledge of any cocaine use by McQuirter on the day of the incident; (2) Lewis’s testimony
was speculative and unsupported by any other testimony; and (3) any relevance of the
testimony was outweighed by its prejudicial effects. Lewis alleges that the exclusion of this
testimony prevented him from adequately portraying his state of mind at the time of the
assault, limiting his ability to create a meaningful argument of self-defense.
¶7. This Court will only overturn a trial court’s ruling on the admissibility of evidence if
it is shown that the trial court abused its discretion. Peterson v. State, 37 So. 3d 669, 673
(¶15) (Miss. Ct. App. 2010) (citing Edwards v. State, 856 So. 2d 587, 592 (¶12) (Miss. Ct.
App. 2003)). Further, “[a] trial judge enjoys a great deal of discretion as to the relevancy and
admissibility of evidence,” and this Court will not reverse the trial court’s ruling “unless the
judge abuses this discretion so as to be prejudicial to the accused.” Shaw v. State, 915 So.
2d 442, 445 (¶8) (Miss. 2005).
¶8. An assault is justifiable on the ground of self-defense when, at the time of the assault,
the defendant had “reasonable grounds to apprehend design on the part of the victim to kill,
or to do him great bodily harm,” and there was an “imminent danger of such design being
accomplished.” Anderson v. State, 571 So. 2d 961, 963 (Miss. 1990). Further, this right of
self-defense is forfeited when the defendant is the initial aggressor and “provokes a
difficulty, arming himself in advance, and intending, if necessary, to use his weapon and
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overcome his adversary.” Id. As Lewis correctly observes, he is entitled to a fair trial, and
implicit in that right is a meaningful opportunity to present a complete defense. Freeman
v. State, 121 So. 3d 888, 895 (¶15) (Miss. 2013) (citing California v. Trombetta, 467 U.S.
479, 485 (1984)). Lewis argues that because he was not allowed to testify to his belief of
McQuirter’s state of intoxication, he was not able to adequately express his state of mind and,
thus, he could not adequately argue self-defense.
1. Admissibility of Character Evidence Under Rule 404(a)(2)
¶9. A right to argue self-defense is not without its limits when the evidence includes
character evidence. Subject to some exceptions, character evidence is not admissible to
prove action in conformity therewith. See M.R.E. 404; Newsom v. State, 629 So. 2d 611, 613
(Miss. 1993). One exception to this general rule is “[e]vidence of a pertinent trait of
character of the victim of the crime offered by an accused.” M.R.E. 404(a)(2). This
exception “specifically authorizes inquiry by a criminal defendant into a victim’s character”
after the defendant “prove[s] that the victim was the initial aggressor.” Newsom, 629 So. 2d
at 613. While older cases recognize that intoxication may be relevant in a self-defense claim,
more modern precedent “emphasizes not whether the victim is intoxicated, but the victim’s
propensity for violence at the time of the crime.” Rouster v. State, 981 So. 2d 314, 320 (¶17)
(Miss. Ct. App. 2007).
¶10. In other words, while the victim’s propensity for violence is a pertinent trait for a self-
defense claim, intoxication, by itself, is not. The “purpose of introducing character evidence
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of the victim’s intoxication is to further the defendant’s self-defense claim by proving the
victim, who had a propensity for violence, became more violent after intoxication.” Id.
Therefore, in order for character evidence of a victim’s intoxication to be relevant and
admissible, the “defendant must offer evidence of an overt act of aggression perpetrated
against him by the victim” and show that the alleged intoxication increased the “victim’s
propensity for violence at the time of the crime.” Id. at 319 (¶14). And as always, even if
evidence is relevant, it may be excluded if its probative value is substantially outweighed by
its prejudicial effects. M.R.E. 403.
¶11. We do not find the Rule 404(a)(2) exception applicable here. In order to avail himself
of the Rule 404(a)(2) exception, Lewis must first have shown, at a minimum, some evidence
of an overt act of aggression made by McQuirter. Upon review of the record, it is clear that
Lewis attempted to introduce evidence of McQuirter’s cocaine use well before any overt act
of aggression was established. Further, Lewis did not offer any specific testimony explaining
how cocaine affects McQuirter’s propensity for violence, nor did he offer any testimony
explaining cocaine’s effects on propensity for violence in general. At best, Lewis’s
testimony merely infers his contention that McQuirter was more intimidating while he was
high on drugs; this contention sheds minimal light, if any, on the effects of cocaine on
McQuirter’s propensity for violence. Any probative value would be minuscule, while the
evidence of illegal drug use could potentially prove highly prejudicial. We do not believe
that the trial court abused its discretion when it refused to allow the testimony.
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2. Admissibility of Character Evidence Under Rule 404(b)
¶12. Lewis’s arguement that the evidence of McQuirter’s drug use was offered to inform
the jury of Lewis’s state of mind at the time of the assault is also without merit. Character
evidence may be admissible when evidence of past crimes, wrongs, or acts is offered for a
purpose other than proof that a defendant acted in conformity therewith. M.R.E. 404(b). The
Mississippi Supreme Court has held that “evidence of character[,] and specific acts of the
victim toward the defendant, offered to show the defendant’s state of mind[,] are admissible.”
Russell v. State, 607 So. 2d 1107, 1116 (Miss. 1992) (emphasis added).
¶13. The Rule 404(b) exception is inapplicable, in large part, for the same reason that the
Rule 404(a)(2) exception is inapplicable. At trial, Lewis did little to explain the relevance
of this evidence to his state of mind at the time of the assault. Lewis simply stated that he
believed McQuirter was high on drugs, and that this belief increased his apprehension of
harm, offering no explanation for why McQuirter’s intoxication made Lewis more fearful.
As such, Lewis’s state of mind was never clearly established. And again, highly prejudicial
evidence of illegal drug use outweighed the little probative value Lewis’s testimony may
have provided.
¶14. Finally, we note that Lewis did not have firsthand knowledge of McQuirter’s alleged
cocaine use on the night of the assault; as such, his testimony regarding McQuirter’s
intoxication was opinion evidence. Opinion evidence must be based on firsthand knowledge
and must be helpful in resolving the issue. M.R.E. 701 cmt. Lewis contends that, in the past,
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he and McQuirter used drugs together for about three years, and this gave him sufficient
firsthand knowledge of McQuirter’s demeanor while intoxicated. Yet Lewis did not
articulate any details just that he “knew when the man was high.” Further, as previously
mentioned, Lewis’s opinion had little relevance to the trial, as evidence of intoxication is
only relevant in a claim of self-defense insofar as it supports a previously established
propensity for violence.
¶15. We find no error in the trial court’s determination that Lewis’s testimony was not
based on firsthand knowledge, was speculative, and was substantially more prejudicial than
probative. We find that the trial court’s decision to exclude Lewis’s testimony of
McQuirter’s intoxication on the night of the assault was not erroneous. Therefore, we affirm
the conviction and sentence.
¶16. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF
CONVICTION OF AGGRAVATED ASSAULT AND POSSESSION OF A FIREARM
AS A FELON AND SENTENCE OF TEN YEARS FOR AGGRAVATED ASSAULT
AND FIVE YEARS FOR POSSESSION OF A FIREARM AS A FELON, WITH THE
SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, JAMES
AND WILSON, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.
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