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Kindred v. Columbus County Club9/8/2005
nown to, and certainly listed as a witness by, Kindred. In my view, the trial court punished Kindred for the Country Club's oversight. Kindred should have been allowed to call Traywick as a rebuttal witness, and the jury (rather than the trial court or this Court) should have been allowed to judge his credibility.
McCoy's Testimony
. A careful review of the transcript regarding Kindred's witness, Tyrone McCoy, reveals that the Country Club's lawyer asked him on cross-examination whether he was being paid to testify. McCoy denied being paid. When Kindred's lawyer demanded to know the good faith basis for the question, none was provided, and the trial court refused to require one to be provided.
. The mere asking of some questions can cause prejudice, regardless of the answer. This Court has held that a lawyer must have a good faith basis or reason to ask such questions. See, e.g., Flowers v. State, 773 So. 2d 309, 326 (Miss. 2000) ("counsel must have a good faith basis for any question asked on cross-examination."). In my view, when Kindred's lawyer demanded to know the good faith basis for asking McCoy whether he had been paid to testify, the trial court should have required disclosure of the information.
. In addition, I disagree with the majority's view and disposition of the alleged intimidation and threats made to McCoy. He provided an affidavit alleging that one of the Country Club's lawyers attempted to dissuade him from testifying by telling him that there were some charges pending against him and he "could get locked up if testified." After this very serious charge was made, the trial court held a hearing at which McCoy appeared and testified, under oath, that the threat was made and that, although he was scared, he testified anyway. The Country Club did not call its lawyer to the stand to deny the charge. Some twenty minutes after McCoy testified, he was, in fact, arrested just as the Country Club's lawyer allegedly promised him. McCoy provided the following sworn account: "After testifying, I left the courthouse and walked home . . . . Soon after my arrival, four police cars, two county and two city, pulled up in front of my house. Several officers got out of the cars, two went to the back of my house and two came to the front. . . ." The charges against McCoy had been pending for a decade.
. Although one might argue that, since McCoy testified at trial despite the threat, then no harm, no foul. In my view, that is not appropriate. The trial court should have required the Country Club's lawyer to respond to the charge. If he admitted the threat, a mistrial should have been granted. If he denied making the threat, the trial court then could have judged the credibility of the evidence and decided whether or not he believed the threat was made. To assign absolutely no credibility to McCoy's unrebutted testimony and not require any response to the charge, was error and should result in a new trial, particularly since the alleged threat against McCoy was carried out.
. We certainly should not, and do not, dismiss lightly the trial judge's discretion and judgment, particularly since he was there and we were not. However, a cold, verbatim record which can be reviewed many times, sometimes provides a more reliable basis for evaluating error than memory and analysis in the midst of an emotional and contentious trial.
. For the reasons stated, I would reverse and remand for new trial.
WALLER, P.J., JOINS THIS OPINION.
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