Brent v. State

For the Court:

Leslie Brent has appealed his conviction in the Circuit Court of Copiah County of felonious child abuse and sentence to ten years imprisonment. Finding no error, we affirm.

FACTS

When Lemerle Gilmore married Brent in December, 1984, she had three children, Cer-ita, Tenecia and Danny Gilmore. Following her marriage, Cerita and Tenecia lived with Lemerle’s mother, Mrs. Eartha Lee Gilmore. Danny lived with Lemerle and his stepfather, Brent. Lemerle and Brent had one child born of them marriage, Leslie Brent, Jr.

In December, 1989, Danny was nine years of age, in the third grade at Crystal Springs School, and a below average student.

At 7:00 a.m. on the morning of December 11, 1989, Lemerle dropped Danny and the baby, Leslie, off at Mrs. Gilmore’s on her way to work. When she returned that evening, Danny told her that he had stolen his grandmother’s ring. When they got home, Danny was punished by his mother for stealing the ring. The next morning, after Danny arrived at his grandmother’s house, he told his sister Cerita that Brent on the previous night had beaten him and then burned him with a spoon. Danny showed her the burn marks and in turn, Cerita told her grandmother, who then treated his burns.

While in school on the morning of December 12, 1989, Danny was summoned from his classroom by Dorothy Stokes, principal of Crystal Springs Elementary School. Danny told Stokes and a social worker that he had been burned with a spoon at home by his stepfather. According to Stokes, the burn resembled “the head part of a spoon” and she could think of no way that Danny could have been burned like that while in school.

Later in the day Danny was taken to the Crystal Springs Police Department by his aunt, Sadie Edwards. Billy Mangold, a licensed social worker employed by the Department of Human Services, was at the station on another matter when Danny was brought in. After interviewing Danny, Man-gold took photographs of the physical injuries. Danny was not taken to a doctor that day because there had been a severe snow storm. After interviewing, examining and photographing him, Mangold was convinced that Danny was an abused and neglected child, and contacted the Youth Court for his removal from the Brent home.

Following Mangold’s investigation, on December 12, 1989, Danny was removed from the Brent home, and placed with his aunt Sadie Edwards.

Brent was arrested and charged with felonious child abuse, and on April 4, 1990, was indicted by a grand jury of Copiah County for felonious child abuse in violation of § 97-5-39(2). Trial was held on April 17, 1990.

Trial

During the course of the trial, there was voir dire examination of Danny’s ability to accurately testify. After questioning from both sides, the Court determined that Danny was competent to testify. Part of Danny’s testimony was that his mother had punished him by beating him “with a big black extension cord.” In addition, Danny testified that later that same night, after his mother punished him, Brent beat him with a “hard stick” and then put his mother in the back room of the house. Following this, Danny was told to remove his shirt. Brent then opened a drawer, removed the baby’s spoon, heated it over the gas stove, and stuck it on Danny’s chest. Danny also testified that his lip was broken open as result of Brent’s beating. Danny prepared himself for bed but did not reveal to his mother what had happened.

Q: Would you tell the folks why you didn’t tell your Mother.

A: ‘Cause she told me don’t tell nobody, so I didn’t tell nobody but my sister.

Q: Who told you not to tell anybody?

A: My mother.

Q: Who was it you told?

A: My sister.

Q: And what happened when you told her?

A: I was scared ‘cause I had told my sister.

Q: Why were you scared because you had told your sister?

A: Mother told me don’t tell anybody.

(R. 63-64)

Cerita Gilmore, Eartha Lee Gilmore, and Sadie Edwards were called to testify on behalf of the State. All three stated that on December 12, 1989, Danny revealed the bruises and burn marks to them. Cerita and Sadie also testified that they had previously observed bruises all over the child and that Danny was in such condition “very often.”

Lemerle Brent testified that she was the sole provider for her family as she was the only one working during that time. She testified that on the night of December 11, 1989, she punished Danny for stealing the ring by whipping him with a switch. According to Lemerle, her whipping caused Danny’s broken lip. Lemerle also testified that she first learned of the burn marks on Danny’s chest the evening of December 12 when she arrived to collect her children from Eartha Gilmore’s house. Lemerle stated that she was in the bathroom with Danny when he showered that morning but that she only saw marks from the whipping. Finally, Lemerle testified that Brent in no .way punished Danny that night and that she did not believe that he burned him. She did admit to having a baby spoon in the house for feeding Leslie, Jr.

After Danny was removed from the Brent home, it was two to three weeks later before Lemerle saw her son again. She and Hazle McKinley, Brent’s mother, went to see Danny at Sadie Edwards’ house. Mrs. Edwards testified that she did not invite the two women to her home and that “they was talking to Danny trying to convince him to talk to Leslie’s lawyer by telling him that he didn’t burn him.” Lemerle Brent testified that the only contact she had with Danny after he was removed from the home was “after they had sent for me, I went by the house one time.”

Brent testified on direct examination that at no time during his marriage to Lemerle did he discipline or punish Danny. On cross-examination, however, he admitted to whipping Danny during the early years of the marriage. Brent emphatically denied burning or administering punishment of any kind to Danny on the night of December 11, 1989.

Mangold testified that Danny was a frightened little boy who feared that he might be placed back in the home with Brent; and that it was fairly common for abused and neglected children not to complain to others because of their fears.

Juror Misconduct

Following the testimony of several State witnesses, during the lunch recess defense counsel learned from some source that a juror was discussing the case with his fellow jurors. He brought it to the attention of the court. A hearing was then conducted in chambers. Mangold, the social worker who had investigated the case, first testified that J.D. Lewis, father-in-law of the sheriff of Copiah County, had told him that morning prior to being selected as a juror that if he “was selected as a juror that the state would not win another damn case.” Mangold also said he had informed the prosecuting attorneys of this statement. The state had nonetheless accepted Lewis as a juror.

David Bagley, the bailiff for the jury, then testified that when the jury was being taken to lunch, Lewis told him that “we going to raise hell in the jury room when we get up there.” Bagley' reprimanded him, “J.D., don’t say that.” Then he heard Lewis talking to the other jurors at lunch, and again reprimanded him. Bagley continued:

Coming on out [from lunch] he said “I got four on my side now.” I said, “J.D., that ain’t right,” I said “sit in there and listen to the evidence and then make up your mind.” He said, “7 done made up my mind.” (Emphasis added).

In response to further questioning by defense counsel as to whether he had heard Lewis say anything else, he replied, “He was talking too low and laughing. You know how he is about laughing.”

The district attorney then moved for a mistrial or in the alternative that Lewis be replaced as a juror:

BY MR. SMITH:

Your Honor, the State would move for a mistrial, or in the alternative to strike Juror Lewis and replace him with the alternate. I will state for the record that I was aware that he made a comment this morning, but I know J.D. Lewis and felt like he was doing nothing more than talking, but it appears that he’s a man that I know to be a talker and bragger and so forth, and I really didn’t take it seriously; apparently, though, he has done more than that. He has actually violated his oath as a juror and has talked to some of the other witnesses, in fact has made the comment that he’s got four on his side.

Defense counsel responded:

BY MR. VARAS:

Your Honor, if the State had problems with Mr. Lewis, they should have struck him off the panel. This information was available to them prior to selecting the jury. (Emphasis added).

The circuit judge then noted that because the statement made by Lewis to Mangold was made prior to being selected as juror, and the State, being apprised of this remark, nevertheless accepted him as a juror, the court was not going to declare a mistrial because of this statement. As the record shows, the court was not going to give any relief whatsoever to the State for Lewis’s adverse remarks prior to trial. The circuit judge went on to state, however, that “the conversation during the noon hour upsets me considerably.”

Defense counsel then stated that if the Court felt improper statements had been made, a mistrial, rather than simply dismissing Lewis as a juror, would be appropriate.

The district attorney responded that he had no idea whether the four Lewis claimed to have with him were for conviction or acquittal.

The court went on to note that Lewis was well known, the father-in-law of the sheriff, a compulsive talker, all of which was known to the State before choosing him. The court concluded that Lewis should be discharged as a juror and the trial continue.

Defense counsel objected, saying that either Lewis should be permitted to sit, or a mistrial granted. “Your Honor, my objection would be that the panel has been tainted, that there should be a mistrial as opposed to excusing one juror. I don’t know what’s been said or what may have been done.”

Defense counsel continued: “I just wanted to note my objection for the record, that I am having to pay for the State’s mistake in this matter and I don’t, you know, and I don’t appreciate having to do that.”

BY THE COURT:

Well, you also accepted Mr. J.D. Lewis—

BY MR. VARAS:

—Right, and I still accept Mr. Lewis to go forward.

(R. 49) (Emphasis added).

The court then excused Lewis, and polled the remaining jurors as follows:

BY THE COURT: .

Ladies and gentlemen of the jury, if there has been any remark made by any person outside of this courtroom pertaining to this case, will you and each of you promise me that you will not consider that at all in arriving at your verdict in this case. Will you do that? If you will, hold up your hand please.

Let the record show that all twelve held up their hand. Very well. Miss Tarver, we’re going to promote you up on the jury, and you will take that seat back there.

LAW

I. REFUSAL TO DECLARE MISTRIAL

We address first whether the court abused its discretion in refusing to declare a mistrial.

From the record, it is clear that it was the State which first wanted a mistrial. The circuit judge said that the State having accepted a juror knowing he was adverse, the court was not about to declare a mistrial because of his pretrial remarks. The circuit judge was concerned about his misconduct during trial. It is also clear that defense counsel had no objection to Lewis remaining as juror. What he did object to was that if Lewis was going to be replaced, that the court declare a mistrial. Defense counsel was satisfied with the jury as constituted, and never asked that Lewis be removed.

Defense counsel’s motion for a new trial contains the following assignments as to the removal of Lewis:

5. The Court erred by removing one of the jurors from the panel when there was insufficient evidence for the removal. (Emphasis added).

6. The jury panel was contaminated when one of the jurors was removed and the Court should have declared a mistrial.

Brent’s objection at trial and in his motion for a new trial was that the circuit judge erroneously removed a juror who was favorable to his side. There was clearly no prejudicial “tainting” of the jury against Brent. If Lewis’s comments had been to convict, his statement that he had four jurors with him may have justified a mistrial upon motion by the defense. But, the comments of Lewis were almost surely to acquit.

Therefore, the question is whether or not the court committed error in removing Lewis, not that Lewis had contaminated the jury against Brent.

Counsel never attempted in his motion for a new trial to have Lewis questioned as to whether any of his comments were directed against Brent. If they had been, we might have an entirely different story.

So, the question we have on this appeal is not whether the jury was contaminated against Brent. All the evidence suggests it was the other way around. Lewis was well known to defense counsel and the State. If there had been any suggestion that Lewis had tried to influence the jury to convict Brent, defense counsel would most assuredly have asked the Court to make some inquiry and a hearing had on the question in his motion for a new trial. Gladney v. Clarksdale Beverage Co., Inc., 625 So.2d 407 (Miss.1993).

The real question is whether or not the court committed reversible error in removing Lewis at all, not in refusing to declare a mistrial.

Whether the court declared a mistrial or simply removed Lewis as a juror, either way, Brent was deprived of a juror favorable to him.

Was Brent entitled to have Lewis remain on the jury in view of the fact that the State had already accepted him, knowing he had expressed the intention never to vote to convict, regardless of the facts of the case? This is the question. The circuit judge was clearly unhappy with the State, and would never have excused Lewis except for the blatant misconduct observed by the bailiff after Lewis was on the jury panel.

Lewis’s conduct and statements as a juror were contemptuous and blatantly violated the court’s instructions to the jury. To hold that a circuit judge cannot remove a juror who is disrupting the evidentiary process by declaring to all the remaining jurors before either side has completed putting on its case just how he is going to vote, and actively soliciting their support is to say the court has no discretion at all. It was the State, not the defense which ran the risk in not having a mistrial declared. Lewis’s statements were against the State.

The decision to declare a mistrial is within the sound discretion of the trial judge. See Arizona v. Washington, 434 U.S. 497, 512, 98 S.Ct. 824, 834, 54 L.Ed.2d 717 (1978); Grandberry v. Bonner, 653 F.2d 1010 (5th Cir.1981). To find error from a trial judge’s failure to declare a mistrial, there must have been an abuse of discretion. Jones v. State, 398 So.2d 1312, 1318 (Miss.1981); Schwarzauer v. State, 339 So.2d 980, 982 (Miss.1976). Trial judges in this state are further guided by Uniform Criminal Rules of Circuit Court Practice 5.15, Mistrial, concerning when a mistrial is required:

The court shall declare a mistrial upon the defendant’s motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant’s case.

U.C.R.C.C.P. 5.15.

The conversation between Mangold and J.D. Lewis was prior to Lewis being accepted as a juror by the State. Lewis did converse with other jurors during the noon recess, but was subsequently removed from the panel and the remaining jurors were instructed not to consider his remarks in reaching their verdict, and polled individually. When a verdict is attacked, some taint therein must be shown. White v. State, 142 Miss. 484, 107 So. 755 (1926). Once Lewis was removed, the trial proceeded without incident. There is a strong presumption that a jury will follow instructions given to them by the court. McFee v. State, 511 So.2d 130, 136 (Miss.1987), citing Arteigapiloto v. State, 496 So.2d 681, 685 (Miss.1986); Cabello v. State, 490 So.2d 852, 857 (Miss.1986); Sand v. State, 467 So.2d 907, 911 (Miss.1985). There was no abuse of discretion in refusing to declare a mistrial.

II.SUFFICIENCY OF THE EVIDENCE

Brent also challenges on appeal, as he did at trial in motions for a directed verdict and a new trial, the sufficiency of the evidence to convict. Brent’s guilt or innocence was a proper jury issue.

III.DANNY’S COMPETENCY AS A WITNESS

Rule 601 of the Mississippi Rules of Evidence governs the general rules of witness competency. This rule provides that every person is competent to be a witness except as restricted by the specific exceptions within the rule itself. “Before allowing a child witness to testify, the trial judge should determine ‘that the child has ability to perceive and remember events, to understand and answer questions intelligently and to comprehend and accept the importance of truthfulness.’ ” Mohr v. State, 584 So.2d 426, 431 (Miss.1991) (citing House v. State, 445 So.2d 815, 827 (Miss.1984)). Danny passed the test.

IV.QUESTIONING OF DANNY’S CHARACTER

During the cross-examination of Danny, the defense posed the following questions:

Q: Now, you took your grandmother’s ring, is that correct?

A: Yes, sir.

Q: Did you ever take anything else from your grandmother’s house?

A: No, sir.

Q: Has your mother ever had to whip you before that for taking things?

A: Yes, sir.

Q: What things?

Q: For what?

BY MR. SMITH: Your Honor, I would object at this time to this line of testimony as neither relevant or material to the issue before the jury.

BY THE COURT: I’m going to sustain under Rule 608(b).

BY MR. VARAS: Your Honor, I think I’m entitled to bring out matters that reflect on the child’s behavior.

BY THE COURT: Well, I have already ruled. Under 608 you can only go into matters that concern the character of truthfulness.

(T. 66-67)

We must begin with the observation that, having secured an answer to the question that the witness had been punished for taking things, defense counsel seems to have been clearly delving into irrelevant matter with the inquiry as to what things were taken. Moreover, even if there could be some relevancy in the nature of the “things” taken we have no way of making that determination because no proffer was made. For these reasons this assignment of error must fail. We discuss the matter further, however, because of the circuit judge’s ruling on Rule 608(b) of M.R.E.

Rule 608(b) provides:

Specific Instances of Conduct.

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of a crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of a witness (1) concerning his character for truthfulness or untruthfulness, ...

M.R.E. 608(b).

Thus, the rule provides discretionary authority for the trial judge to permit upon cross-examination inquiry into specific acts of misconduct of a witness “if probative of truthfulness or untruthfulness,” and concerning a witness’s character for “truthfulness or untruthfulness.” The comment to the rule notes that this exception goes beyond pre-rules decisions, and allows “impeachment by specific acts which are something other than criminal convictions when the character trait of truthfulness of the witness being examined is under attack.”

While the circuit judge may have been mistaken in his observation that “taking things” did not concern a character trait of truthfulness, he did not abuse his discretion in sustaining an objection to this line of questioning regarding the child’s behavior. Mississippi Rule of Evidence 608(b) comes verbatim from the Federal Rules of Evidence, and we go to the federal courts’ interpretation for guidance. Rule 608(b) has been called a “complex rule.” Leonard, Appellate Revieiv of Evidentiary Findings, 70 N.C.L.Rev. 1155, 1167 (1992). Today we give guidance to trial courts in its application.

It is elementary that evidence offered for one purpose might be inadmissible, yet admissible when offered for another. M.R.E. 105; See U.S. v. Martinez, 962 F.2d 1161, 1165 (5th Cir.1992); U.S. v. Abel, 469 U.S. 45, 56, 105 S.Ct. 465, 471, 83 L.Ed.2d 450 (1984); Lubbock Feed Lots v. Iowa Beef Processors, Inc., 630 F.2d 250, 261 (5th Cir.); reh’g denied 634 F.2d 1355 (5th Cir.1980). In construing evidentiary rules, it is necessary that we be precise, because it is quite easy to mix an evidentiary apple in with an evidentiary orange.

In this case we are faced with this question: Under what circumstances may one cross-examine a witness under Rule 608(b) about specific instances of past conduct not resulting in a conviction when the sole purpose of such line of questioning is to destroy the witness’s credibility for truthfulness? When will it be permitted, and what is its effect? These questions embrace our entire inquiry in this case.

Prior to promulgating the M.R.E., cross-examination of a witness about specific instances of past conduct not connected with the case was considered irrelevant and impermissible when the purpose was to impeach his character. Baxter v. Rounsaville, 193 So.2d 735 (Miss.1967); Tippit v. Hunter, 205 So.2d 267 (Miss.1967); Bailey v. State, 67 Miss. 333, 7 So. 348 (1889); Stewart v. State, 263 So.2d 754 (Miss.1972); Pierce v. State, 213 So.2d 769 (Miss.1968); Gallion v. State, 469 So.2d 1247, appeal after remand 517 So.2d 1364 (Miss.1985). Rule 608(b) offers a window of opportunity, albeit small.

The rule first tells us that specific ínstame-es of a witness’s conduct for the purpose of either attacking or supporting his credibility which did not result in a conviction “may not be proved by extrinsic evidence.” M.R.E. 608(b). As noted, this has always been the rule in this state. Rule 608(b) continues, however, to inform us that specific instances of past conduct not resulting in a conviction may “in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness ...” M.R.E. 608(b).

What are the guides to a trial court in making this determination?

The first guide, of course, is the rule itself. The proffered conduct must be such as to reflect upon the witness’s character for truthfulness. If the past conduct did not involve lying, deceit, or dishonesty in some manner, it cannot be inquired into on cross-examination Sayles v. State, 552 So.2d 1383, 1385-86 (Miss.1989); Pace v. State, 473 So.2d 167, 169 (Miss.1985). The trial court has no discretionary authority to permit inquiry by cross-examination into conduct not involving truthfulness.

Assuming the trial court finds- the proposed inquiry probative of the witness’s character for veracity, in exercising his discretion whether or not to permit it, the court must look to two other Rules of Evidence, 611 and 403.

Rule 611 tells us that the court must exercise reasonable control over the mode and order of trial testimony and presentation of evidence to promote attaining the truth, and to avoid “needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” M.R.E. 611.

The trial judge must also consider the proffered evidence under the strictures of Rule 403 which states that “relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ...” M.R.E. 4-08.

The comment to F.R.E. 608(b) states:

Particular instances of conduct, though not the subject of criminal conviction, may be inquired into on cross-examination of the principal witness himself or of a witness who testifies concerning his character for truthfulness. Effective cross-examination demands that some allowance be made for going into matters of this kind, but the possibilities of abuse are substantial. Consequently safeguards are erected in the form of specific requirements that the instances inquired into be probative of truthfulness or its opposite and not remote in time. Also, the overriding protection of Rule 403 requires that probative value not be outweighed by danger of unfair prejudice, confusion of the issues, or misleading the jury, and that of Rule 611 bars harassment and undue embarrassment.

F.R.E. 608, comment (2) at page 552 (emphasis added).

We commend to all trial judges that when a party seeks to cross-examine a witness about specific instances of past conduct probative of veracity under Rule 608(b) that the judge make his findings under Rule 403 of record. Our ability to accord deference to the trial court’s discretion in either permitting or denying such Rule 608(b) cross-examination rests upon specific findings of the trial court of it’s weighing process under Rule 403.

Admission of evidence of past conduct poses special hazards and danger, and should only be admitted when it is necessary to do so to “ascertain the truth,” and unfair prejudice is not imposed, especially upon the accused. Unlike pre-rules decisions, Rule 608(b) authorizes impeachment of the accused by such cross-examination once he takes the stand. State v. Walton, 673 S.W.2d 166 (Tenn.1984).

Procedurally, before counsel attempts an inquiry on cross-examination as to specific acts of past conduct not resulting in a conviction he should inform the trial judge that he intends to do so. The trial judge can then conduct a hearing outside the presence of the jury. It should be emphasized that Rule 608(b) does not authorize a fishing license, but counsel must have specific instances of past conduct about which he proposes to cross-examine the witness, and inform the trial judge of them. Following this, the trial judge can determine first if the conduct reflects upon the witness’s honesty, and if so, weigh the probative value against the danger of unfair prejudice, as required under Rule 403 and also determine whether admission of the evidence will advance the ascertainment of the truth in the case.

Finally, it should be noted that the party cross-examining a witness about past instances of conduct is bound by the witness’s answer. He is not permitted to offer evidence in rebuttal to contradict it. U.S. v. Johnson, 968 F.2d 765, 766-67 (8th Cir.) cert. denied — U.S. -, 113-S.Ct. 481, 121 L.Ed.2d 386 (1992); U.S. v. Leonardo 623 F.2d 746, 757 (2d Cir.), cert. denied 447 U.S. 928, 100 S.Ct. 3027, 65 L.Ed.2d 1123 (1980); U.S. v. Rabinowitz, 578 F.2d 910, 912 (5th Cir.1978); Hayes v. U.S., 407 F.2d 189, 193-94 (5th Cir.), cert. dismissed 395 U.S. 972, 89 S.Ct. 2133, 23 L.Ed.2d 777 (1969); Peel v. U.S., 410 F.2d 1141-42 (5th Cir.1969).

We find no error in the circuit judge’s exclusion of the line of questioning of Danny which defense counsel was attempting in this case. It offered no specific instances and was no more than a fishing expedition. Unless there has been some predicate laid for it, counsel is not permitted to ask a witness on cross-examination open-ended questions such as has he ever stolen or lied or committed wrongful acts of one kind or another. This runs afoul of both Rule 611 which requires a court to protect a witness from harassment or humiliation as well as Rule 403 which requires the cross-examination to be about specific instances. Moreover, counsel made no proffer of what he expected to prove. M.R.E. 108(a)(2).

Finding no reversible error, we affirm.

CONVICTION OF FELONIOUS CHILD ABUSE AND SENTENCE OF TEN YEARS AFFIRMED.

PRATHER, P.J., and PITTMAN, BANKS, JAMES L. ROBERTS, Jr. and SMITH, JJ., concur.

BANKS, J., concurs with separate written opinion joined by SULLIVAN and JAMES L. ROBERTS, Jr., JJ.

DAN M. LEE, P.J., dissents with separate written opinion joined by McRAE, J.

McRAE, J., dissents with separate written opinion joined by DAN M. LEE, P.J.

. Exhibits S-l through S-4 are the photographs taken by Mangold which depict the burn marks and bruises on the child.

. Nowhere in the record does it reflect how Danny could have otherwise received the burns on his chest.

. Just immediately before his selection as a juror, Lewis made it emphatically clear that he intended to vote to acquit Brent. Although we do not know what he actually told his fellow jurors, there is nothing to suggest that he had changed his mind when he told the bailiff a very short time later that he had "four” with him.

. E.g. the fact that the defendant in an embezzlement prosecution has been convicted three previous times of embezzlement is not admissible under Rule 404(b) "in order to show that he acted in conformity therewith” in the case for which he is on trial. If he testifies however, it is admissible under Rule 609(a) to attack his credibility as a witness because the previous convictions involved dishonesty. The fact that proffered evidence might be inadmissible for one purpose does not preclude its admission when properly admissible for another purpose. U.S. v. Abel, 469 U.S. 45, 55-56, 105 S.Ct. 465, 470-71, 83 L.Ed.2d 450 (1984); U.S. v. Martinez, 962 F.2d 1161, 1164-65 (5th Cir.1992).

. It was also the rule in this State that in a criminal case, the accused's reputation could not be attacked as to some character trait unless he first offered evidence of his good character. Hamilton v. State, 197 So.2d 469 (Miss.1967); Pope v. State, 242 Miss. 362, 135 So.2d 818 (1961). Under Rule 608(a), once the accused takes the witness stand, it is discretionary with the trial court whether to admit evidence as to his reputation for veracity. U.S. v. Augello, 452 F.2d 1135 (2d Cir.N.Y.1971), cert. denied 406 U.S. 922, 92 S.Ct. 1787, 32 L.Ed.2d 122 (1975); U.S. v. Bedonie, 913 F.2d 782 (10th Cir.1990), cert. denied - U.S. -, 111 S.Ct. 2895, 115 L.Ed.2d 1059 (1991). We are not directly concerned with Rule 608(a) in this case.

. RULE 611. Mode and Order of Interrogation and Presentation ■

(a) Control by the Court. The Court shall exercise reasonable control of the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. [emphasis supplied]

(b) Scope of Cross-Examination. Cross-examination shall not be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.

(c)Leading Questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by a leading question.

RULE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. (Emphasis supplied)

. With the exception of the placement of the burden, the weighing process under Rule 403 in such circumstances is the same as that required under Rule 609(a) when evidence of prior convictions not involving dishonesty is attempted. Jordan v. State, 592 So.2d 522, 523 (Miss.1991); McGee v. State, 569 So.2d 1191, 1195 (Miss.1990); Signer v. State, 536 So.2d 10, 12 (Miss.1988); Johnson v. State, 525 So.2d 809, 812 (Miss.1988); Peterson v. State, 518 So.2d 632, 636-37 (Miss.1987). Under Rule 403 the objecting party has the burden of persuasion, under Rule 609 the offering party has the burden of persuasion.

. The comment to F.R.E. 611 states: "The inquiry into specific instances of conduct of a witness allowed under Rule 608(b) is, of course, subject to this rule.” U.S. v. Hairreli, 521 F.2d 1264 (6th Cir.), cert. denied 423 U.S. 1035, 96 S.Ct. 568, 46 L.Ed.2d 409 (1975); U.S. v. Bright, 630 F.2d 804, 816 (5th Cir.1980).