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Swindle v. State6/8/1999
Thomas testified she had no idea how Swindle got the gun or how it got back into the trailer. The State comments were not directed to Swindle's failure to testify but were instead directed to the fact that the State presented the only evidence which showed how Swindle came in possession of the gun. This assignment is without merit.
V.
THE TRIAL COURT ERRED IN LIMITING THE DEFENDANT'S PROOF ON THE KNOWN AGGRESSIVE NATURE AND MENTAL CONDITION OF THE DECEASED.
. Swindle argues that this was a case of who was the aggressor, and that was the paramount question to be answered by the jury. Swindle argues that since the character of the victim, namely his aggressive behavior, was central to her self-defense claim she had a right to introduce evidence of Little's violent character under M.R.E. 404(a)(2). Swindle maintains that her attempts to introduce Little's history of violent physical attacks were not allowed by the court. Furthermore, Swindle argues that the court severely limited her introduction of evidence which showed that Little had been extremely depressed over his breakup with Stewart, and that he was suicidal. Swindle maintains that it was reversible error not to have allowed her to introduce this evidence.
. With regard to character evidence where the defendant claims he acted in self-defense, our supreme court has stated:
"The general rule is that character evidence may not be admitted to prove action in conformity therewith. Rule 404, M.R.E. However, Rule 404(a)(2) specifically authorizes inquiry by a criminal defendant into a victim's character. This exception enables defendants to prove that the victim was the initial aggressor and that the defendant acted in self-defense. Comment, Rule 404, M.R.E. Once Rule 404 has been satisfied, character evidence in the form of opinion or reputation evidence is admissible without further restriction. Rule 405(a), M.R.E. However, when character evidence passes through Rule 404(a)(2), and is offered in the form of specific instances of conduct, it is admissible only on cross-examination. Rule 405(a). . . . However, specific instances of conduct in cases where character or the trait of character is "an essential element of a charge, claim, or defense . . . ." are admissible whether on cross or direct examination. Rule 405(b). According to Heidel v. State, 587 So. 2d 835 (Miss.1991), past acts are admissible in cases where a defendant alleges self-defense, concluding that the character trait of violence was an "essential element" of the defense under 405(b). Heidel, 587 So.2d at 843-47." Newsom v. State, 629 So. 2d 611, 613-14 (Miss. 1993).
. In the case sub judice, Swindle's defense was that Little, upon seeing his former girlfriend, became depressed, began drinking, became violent, and when he returned to the trailer Swindle acted in self-defense. Therefore, Little's propensity for violence, state of mind regarding depression and suicide, as well as Swindle's knowledge of Little's violent character were all relevant and competent evidence that should have been admitted.
. The State made a motion in limine to prohibit reputation or character evidence of Little. The trial court granted the State's motion precluding this evidence "until there is some evidence of some overt act toward the defendant." The trial court was correct in that such evidence is not allowed until such time that there is evidence that the victim had been the aggressor in the affray. McDonald v. State, 538 So. 2d 778, 779 (Miss. 1989). However, at the point when the motion in limine was made, Allen, the State's own witness, had already testified that Little had fought with Wilde, had been pointing and shooting
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