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Tanner v. State5/4/2000
Sam if he could borrow a pistol to hunt snakes and frogs. Sam replied that his pistol was locked up, but informed Tanner that Harper's pistol was in a desk drawer at Harper's camp. According to Harper, his pistol turned up missing the same day this conversation took place. On cross-examination, however, Harper could not say exactly what month the gun was stolen and agreed he had previously stated it had been missing since September or October. Furthermore, Harper testified he did not see the gun each time he opened the door because it was covered by a watch cap. Harper also testified that he noticed truck tracks near his camp on the day he found the gun missing and that Tanner was driving a white pick-up truck at that time.
. The gun stolen from Harper was a .32 Smith and Wesson long Remington. This is the same type of gun that killed Wood. It was loaded with lead ball ammunition in S and S long format with a plain bullet. John Dial testified as an expert in firearms identification. Dial testified that .32s are very common and could be purchased at any number of places in the Jackson area. He further testified that there were "at least thousands" of .32s in Jackson. Dial also testified that the murder weapon was of "good quality", appeared to be in "good shape", and did not appear to be "rusted or pitted." Harper, however, testified that his gun was at least 18-20 years old, had never been maintained, and was rusty.
. "Evidence of prior offenses committed by a defendant, not resulting in a conviction, is generally not admissible either for impeachment purposes or as a part of the State's case in chief." Underwood, 708 So. 2d at 32; see also Gossett v. State, 660 So. 2d 1285, 1291 (Miss. 1995). It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Miss. R. Evid. 404(b). Furthermore, "proof of a crime is admissible where the offense charged and that offered to be proved is so interrelated as to constitute a single transaction or occurrence or a closely related series of transactions or occurrences." Underwood, 708 So. 2d at 32. If a prior bad act does fall within a Rule 404(b) exception, its prejudicial effect must still be weighed against its probative value to determine admissibility. Id.
. In the present case, Tanner had never been arrested, indicted for or convicted of stealing Harper's gun. Harper, himself, testified that he thought "Chuck took the gun at first." Harper's trailer was kept unlocked, and many people had access to his camp. There was no eyewitness testimony to confirm Tanner took the gun or ever had the gun in his possession. The only proof offered by the State was the testimony of Harper who said he heard a friend tell Tanner where the gun was located.
. Furthermore, the State failed to identify exactly when the gun was stolen. Harper first told detectives the gun was stolen in the "first part of December". He testified at trial that the gun may have been stolen in "the last part of January or first of February". However, during cross-examination, Harper agreed that he had previously stated the gun had been missing since September or October. The only time frame Harper was sure about was that it was "cold weather" when the gun was stolen. "The lack of at least an approximate time frame completely ignores Mississippi Rules of Evidence 401 and 403 as to relevancy and misleading the jury." Bounds v. State, 688 So.2d 1362, 1371 (Miss. 1997). The lack of a time frame would also seem to allow any bad act, committed at any time, by a defendant to place him in a bad light in front of a jury, which is exactly what the Rules of Evidence seek to
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