Edmonds v. State

For the Court.

¶ 1. The motion for rehearing is denied. The original opinions are withdrawn and these opinions are substituted therefor.

¶ 2. Tyler Edmonds was convicted of the capital murder of Joey Fulgham and sentenced to a term of life in the custody of the Mississippi Department of Corrections. Tyler appealed his conviction and sentence, and this Court assigned the appeal to the Court of Appeals. See M.R.A.P. 16(b). A divided Court of Appeals affirmed Tyler’s conviction and sentence. Edmonds v. State, 955 So.2d 864, 2006 WL 1073460, 2006 Miss. Ct.App. LEXIS 311 (Miss.Ct.App.2006). We granted Tyler’s petition for writ of certiorari and now we find that Tyler was denied a constitutionally fair trial, reverse the judgments of the Court of Appeals and of the Circuit Court of Oktibbeha County and remand this case to the circuit court for a new trial in accordance with this opinion.

FACTS

¶ 3. On Friday, May 9, 2003, Kristi Fulg-ham, who was married to the victim Joey Fulgham, picked up her thirteen-year-old half-brother, Tyler Edmonds, to take him to the Fulgham home in the Longview community as she did every other weekend. She and Tyler have the same father, Danny Edmonds. Tyler’s videotaped confession relates the following series of events: After arriving at Kristi and Joey’s home, Tyler and Kristi went out for Subway sandwiches for dinner. After dinner, Joey went to bed, while Kristi stayed up and used the computer. Tyler fell asleep on the floor next to Kristi, and during the night, she woke him up and put him in the bed of one of her children. Between three-thirty and four o’clock the alarm clock went off, waking Tyler. He then went into the bedroom where Joey slept and, with Kristi’s help, shot Joey in the back of the head with a .22 caliber rifle that Tyler had brought with him at Kristi’s request. Kristi and Tyler then loaded her three children into the car and took the computer and her jewelry, which, according to Tyler, was to make it look as if there had been a robbery. Tyler said he also thought Kristi took Joey’s wallet. They then traveled to Jackson. The gun was never found. The group went to Jackson to pick up Kristi’s boyfriend, Kyle Harvey, and then went to the Mississippi Gulf Coast. They stayed at the Beau Ri-vage and played on the beach. On Sunday, Tyler called his mother and wished her a happy Mother’s Day. On their way back to Jackson, Kristi received several cell phone calls telling her that Joey had been murdered.

¶4. Both Tyler and Kristi voluntarily appeared at the sheriffs department for questioning in Joey’s murder. Kristi placed total blame on Tyler, and Tyler eventually confessed to participating in Kristi’s plan. Tyler was indicted for capital murder and tried as an adult in circuit court. The jury returned a guilty verdict and he was sentenced to life imprisonment. After his notice of appeal was filed, we assigned the case to the Court of Appeals, which affirmed the judgment and sentence. We granted Tyler’s petition for writ of certiorari.

DISCUSSION

I. DAUBERT HEARING.

¶ 5. Rule 702 of the Mississippi Rules of Evidence is the standard for the admission of expert testimony in Mississippi. When determining admissibility of expert testimony, courts must consider whether the expert opinion is based on scientific knowledge (reliability) and whether the expert opinion will assist the trier of fact to understand or determine a fact in issue (relevance). Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 38 (Miss.2003). We also consider factors mentioned in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 587, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993): (1) whether the theory can be, and has been, tested; (2) whether the theory has been published or subjected to peer review; (3) any known rate of error; and (4) the general acceptance that the theory has garnered in the relevant expert community. Id., at 593-94,113 S.Ct. 2786.

¶ 6. We find that the circuit court did not err in excluding the testimony of Allison D. Redlich, Ph.D., concerning involuntariness of confessions because, during the extensive Daubert hearing held by the circuit court, Dr. Redlich herself admitted that her theories could not be empirically tested.

II. SPECULATIVE TESTIMONY BY EXPERT WITNESS.

¶ 7. Stephen Hayne, M.D., conducted the autopsy on Joey’s body and testified at trial as to the cause of death. During his testimony, Dr. Hayne espoused a two-shooter theory almost to the exclusion of a single-shooter theory:

Q: Dr. Hayne, you testified earlier that the defendant’s statement that you saw was consistent with how the gunshot wound occurred?

A: It would be consistent with the physical findings that I observed and the information provided to me by opposite side counsel.

Q. And do you understand that the evidence is that two people fired that shot?

A: That was essentially the summary of the information given to me and seen on the video.

Q: And let’s suppose if one person had fired that shot, would your opinion be the same?

A: I could not exclude that; however, I would favor that a second party be involved in that positioning of the weapon ... it would be consistent with two people involved. I can’t exclude one, but I think that would be less likely ....

Q: Are the injuries Mr. Fulgham sustained consistent within a reasonable degree of medical certainty with the defendant’s version of how he was shot?

A: They are consistent within reasonable medical certainty.

Tyler’s attorney objected to the testimony and requested a Daubert hearing, arguing that such testimony was beyond Dr. Hayne’s area of expertise. The circuit court denied the request, but the Court of Appeals recognized that such testimony was scientifically unfounded: “You cannot look at a bullet wound and tell whether it was made by a bullet fired by one person pulling the trigger or by two persons pulling the trigger simultaneously.” Edmonds at ¶ 51, 955 So.2d at 885. We agree.

¶ 8. While Dr. Hayne is qualified to proffer expert opinions in forensic pathology, a court should not give such an expert carte blanche to proffer any opinion he chooses. There was no showing that Dr. Hayne’s testimony was based, not on opinion or speculation, but rather on scientific methods and procedures. See, e.g., Moss v. Batesville Casket Co., 935 So.2d 393, 404 (Miss.2006). The State made no proffer of any scientific testing performed to support Dr, Hayne’s two-shooter theory. Therefore, the testimony pertaining to the two-shooter theory should not have been admitted under our standards.

¶ 9. A ruling on evidence is not error unless a substantial right of the party is affected. Green v. State, 614 So.2d 926, 935 (Miss.1992). We have no alternative but to find that Tyler’s substantial rights were affected by Dr. Hayne’s con-clusory and improper testimony. Juries are often in awe of expert witnesses because, when the expert witness is qualified by the court, they hear impressive lists of honors, education and experience. An expert witness has more experience and knowledge in a certain area than the average person. See M.R.E. 702. Therefore, juries usually place greater weight on the testimony of an expert witness than that of a lay witness. See generally Simmons v. State, 722 So.2d 666, 673 (Miss.1998); see also United States v. Benson, 941 F.2d 598, 604 (7th Cir.1991) (an expert’s “stamp of approval” on a particular witness’s testimony [or theory of the case] may unduly influence the jury). Here, Dr. Hayne’s two-shooter testimony impermissibly (because it was not empirically proven) bolstered the State’s theory of the case that Kristi helped Tyler to fire the gun. The error was magnified when Dr. Hayne’s testimony was the only evidence — other than Tyler’s contested confession — to support the State’s theory of the case.

¶ 10. However, we find that a full-scale Daubert hearing is not required when an expert witness proffers an “off-the-cuff’ opinion as Dr. Hayne did. See, e.g., Miller v. Baker Implement Co., 439 F.3d 407, 412 (8th Cir.2006) (“While Dau-bert hearings may be necessary in some cases, the basic requirement under the law is that the parties have an ‘opportunity to be heard before the district court makes its decision.’ ”) (quoting Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753, 761 n. 3 (8th Cir.2003)); Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 249 (6th Cir.2001) (citing Greenwell v. Boatwright, 184 F.3d 492, 498 (6th Cir.1999) (a “court is not required to hold an actual hearing to comply with Daubert ”)). As the United States Supreme Court has stated, “The trial court must have the same kind of latitude in deciding how to test an expert’s reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert’s relevant testimony is reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (emphasis in original).

¶ 11. Here, after the defense requested a Daubert hearing, both counsel approached the bench and gave a brief argument. Therefore, the defense had an opportunity to be heard, but the circuit court erroneously allowed the testimony.

III. INVOCATION OF THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION AND M.R.E. 804.

¶ 12. Even though Tyler included Kristi Fulgham on his witness list and issued a subpoena for her to appear, he never called her to the stand. Instead, he attempted to introduce evidence of some of Kristi’s statements to Danny Edmonds, Kristi and Tyler’s father, which tended to show motive on her part. Danny gave a statement to law enforcement officers which provided the probable cause to arrest Kristi. He told officers that Kristi had asked him for a pistol because “she wanted Joey dead” and that she would kill him in his sleep. He also stated that Kristi said she was “tired of Joey beating her up and beating her kids up,” and that if she divorced Joey, his mother would take care of her children. Kristi also told him that Joey had several hundred thousand dollars in life insurance that would go to her if he were dead. The circuit court ruled that this evidence was inadmissible hearsay. On appeal, Tyler argues that this ruling was error because the statements were admissible as statements against interest under M.R.E. 804 inasmuch as they showed Kristi’s motives for killing her husband. The State argues that the statements are not admissible under this exception because Tyler did not show that Kristi, even though she intended to invoke the Fifth Amendment privilege against self-incrimination, was “unavailable” under 804. Thus, we are presented with the question of when a witness who intends to invoke the Fifth becomes “unavailable” under 804.

A. Invocation of the Fifth Amendment Privilege.

¶ 18. The Fifth Amendment to the United States Constitution declares in part that “No person ... shall be compelled in any criminal case to be a witness against himself.” The Fifth Amendment privilege against self-incrimination may be invoked where a witness has “reasonable cause to apprehend danger from a direct answer.” Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). Under the Sixth Amendment’s guarantee of the right to call witnesses, it is generally accepted that a defendant may call a witness who intends to invoke the Fifth to the stand in order that the jury can observe the witness’s responses. See, e.g., Stewart v. State, 355 So.2d 94, 95-96 (Miss.1978) (trial court committed reversible error by not allowing defendant to call witness who intended to invoke the privilege against self-incrimination); see also Bell v. State, 812 So.2d 235, 238-39 (Miss.Ct.App.2001) (same); Hall v. State, 490 So.2d 858 (Miss.1986) (same); Coleman v. State, 388 So.2d 157,159 (Miss.1980) (same).

¶ 14. The United States Supreme Court has never held that permitting a witness to assert his or her Fifth Amendment privilege against self-incrimination without taking the witness stand violates a defendant’s right to a fair trial. See, e.g., Davis v. Straub, 430 F.3d 281, 287 (6th Cir.2005). Indeed, the United States Supreme Court has held that, because the witness was not called to testify, the witness did not expressly invoke the privilege, and “the absence of this formality is not decisive.” Lee v. Ill., 476 U.S. 530, 550, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). Other courts have held that where a criminal defendant wishes to call a co-defendant to testify, such a co-defendant is “unavailable” for testifying under the evidentiary rule which creates the hearsay exception for statements against interest. See, e.g., United States v. Hepburn, 86 Fed.Appx. 475, 476 (2d Cir.2004) (trial court’s determination that co-defendant was unavailable under F.R.E. 804(a) due to his intention to invoke his Fifth Amendment privilege if called to testify not error); United States v. Adderley, 51 Fed.Appx. 69, 69-70 (2d Cir.2002) (no abuse of discretion where trial court did not require co-defendants personally assert their Fifth Amendment privilege before the court); United States v. Thomas, 571 F.2d 285, 288-90 (5th Cir.1978) (co-defendant’s testimony clearly unavailable under Rule 804(a)(1) — co-defendant’s unavailability as a witness was “patent”); United States v. Chan, 184 F.Supp.2d 337, 341 (S.D.N.Y.2002) (assertion of privilege by co-defendant’s attorney is sufficient).

¶ 15. The United States Court of Appeals for the Fifth Circuit, citing Thomas, has discussed this issue in depth:

Thus, it is clear that a witness who is unavailable because he has invoked the Fifth Amendment privilege against self-incrimination is unavailable under the terms of 804(a)(1).

The government argues, however, that in order for a witness to be unavailable under the rule, the witness claiming the Fifth Amendment privilege must be exempted from testifying by a ruling of the court. The government contends that the appellant never tendered Keller or Kemp for questioning so that the district court could rule on the validity of their asserted privilege. In Thomas, we further held:

Rule 804(a)(1) requires an express assertion of the privilege and a ruling by the court that the privilege constitutes unavailability, see 4 Weinstein’s Evidence para. 804(a)[01] (1976), but here the existence of the privilege and Weeks’ right to assert it and Weeks’ unavailability as a witness are patent. The trial court declared the evidence inadmissible before reaching issues raised by Rule 804. It would be mere formalism to abjure the merits of [defendant’s] claim in these circumstances. See U.S. v. Oropeza, 564 F.2d 316, 325 n. 8 (9th Cir.1977).

Ibid.

Thus, although Rule 804(a)(1) literally requires the court to rule upon the validity of the witness’ assertion of the privilege, our ruling in Thomas indicates that such a requirement need not be met when its fulfillment would be a mere “formalism.” It is clear from the record that the district court assumed a proper claim of the privilege had been made but held that the claim did not render the witnesses unavailable. The court simply concluded that Rule 804(a)(1) did not have application to unavailability because of the claim of Fifth Amendment privilege. As in Thomas, the “trial court declared the evidence inadmissible before reaching issues raised by Rule 804.” We, therefore, conclude that it was unnecessary for the court to have ruled with more specificity as to the validity of Kemp’s and Keller’s asserted privilege against self-incrimination. It was clear to all participants that each claim would have been made. In fact, the government stipulated at trial that Kemp and Keller would assert their Fifth Amendment privilege if called to testify.

United States v. Young Bros., Inc., 728 F.2d 682, 691 (5th Cir.1984).

¶ 16. In all of the preliminary proceedings and during the trial, Kristi Fulgham’s defense counsel was present to insure that she would not be prejudiced in any way. Her defense counsel filed a motion to prevent Kristi from being called to testify, and also appeared at both a pretrial hearing and at trial to state for the record that Kristi would invoke her Fifth Amendment right: “It’s not if she invokes her privilege. She will invoke her privilege. I’ve been unequivocal about that and I have spoken with her and that is our intention and will not change.” Other jurisdictions do not require placing the witness on the stand to invoke the Fifth, finding that the privilege may be asserted through counsel. United States v. Williams, 927 F.2d 95, 99 (2d Cir.1991); Chan, 184 F.Supp.2d at 341.

¶ 17. In Woodham v. State, 800 So.2d 1148, 1154-55 (Miss.2001), we approved of a “blanket” invocation of the Fifth Amendment:

[A] blanket claim of the privilege is proper where the proceeding is criminal in nature and the record affirmatively reflects (1) the witnesses are potential accessories to the same crime; (2) the witnesses upon the advice of their lawyers, would have invoked their Fifth Amendment privilege to each and every specific question, and (3) the trial judge has sufficient information to determine, in fact, that answering any questions at all about the offense would tend to incriminate the witnesses. Both Boyette and Thompson were potential defendants in pending cases here, — Boyette had been indicted for accessory to murder and Thompson had been charged in youth court. We hold, therefore, that they were entitled to Fifth Amendment protection and that there was no error here as there was no question proffered which would be outside the scope of that privilege.

¶ 18. Kristi was charged with capital murder in the murder of her husband — the same crime with which Tyler was charged. Kristi’s attorney asserted to the circuit court that, if called, she would invoke her privilege against self-incrimination. Tyler made a proffer of the statements which he wished to introduce as statements against interest, so the circuit court knew what information Tyler wished to elicit from Kristi. However, since Kristi was never called as a witness and we do not have a specific ruling by the circuit court to review, we do not address the issue of what is required to assert the Fifth Amendment.

B. Admissibility of Kristi’s Statements Against Interest.

¶ 19. Regardless of Kristi’s availability as a witness, we must address the issue of the admissibility of Kristi’s admission as the issue is likely to reoccur on retrial. We find that the circuit court erred in excluding the proffered testimony of Danny Edmonds as inadmissible hearsay. Rule 804 of the Mississippi Rules of Evidence provides that, if a witness is “unavailable” to testify, testimony from other witnesses about statements made by the unavailable witness is not inadmissible hearsay. Rule 804(a)(1) provides that an unavailable witness includes one who “is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statements.... ” Rule 804(b)(3) further provides that “[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”

¶ 20. Under 804, for a statement against interest to admissible, the statement must be against the witness’s penal interest. Although the remarks did not amount to a clear confession to a crime, they would have probative value in the State’s case against Kristi. Thomas, 571 F.2d at 289. As the Fifth Circuit held,

The statement offered by Thomas satisfies the requirement that it be against Weeks’ penal interest. The government argues that Weeks’ statement was not against his penal interest because he did not expressly confess to the crime involved. We do not read Rule 804(b)(3) to be limited to direct confessions of guilt. Rather, by referring to statements that “tend” to subject the declarant to criminal liability, the Rule encompasses disserving statements by a declarant that would have probative value in a trial against the declarant. Thus, in U.S. v. Bagley, 537 F.2d 162 (5th Cir.1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 816, 50 L.Ed.2d 794 (1977), we held to be against penal interest a statement that the declarant had given the accused a package of heroin instead of a package of Valium. Although the statement did not confess to the crime charged against the accused (possession with intent to distribute heroin), the statement implied the de-clarant’s guilt of a felony, knowing possession of heroin.

See also United States v. Sarmiento-Perez, 633 F.2d 1092, 1101 (5th Cir.1981) (the circumstance that the out-of-court statement would have probative value in a trial against the declarant himself is indicative that it is sufficiently against his penal interest as to be reliable). The statements clearly indicate her intention to murder her husband and would be probative in the State’s case against Kristi for Joey’s murder. Therefore, they are sufficiently against Kristi’s penal interest to fall under Rule 804.

¶ 21. Another consideration for the admission of a statement against interest is whether it shows particularized guarantees of trustworthiness. Jacobs v. State, 870 So.2d 1202, 1208 (Miss.2004). However, corroboration as required by Rule 804(b)(3) is not required to be absolute, and the sufficiency of the corroboration must be assessed in the light of the importance of the evidence and the offer- or’s fundamental constitutional right to present evidence. Lacy v. State, 700 So.2d 602, 607 (Miss.1997). Here, we find that Danny’s testimony was sufficiently trustworthy because Danny was both Kristi and Tyler’s father. Surely, he had a significant reason not to inculpate Kristi, and it is reasonable to assume that he would not testify that she made the statements unless she really did make the statements.

¶ 22. Moreover, Danny Edmonds’s statement is corroborated by other evidence: Kristi had previously inquired about Joey’s life insurance with the National Guard, and Joey’s body was found in his bed, consistent with someone who had been shot in his sleep. The statements are further corroborated by Tyler’s testimony that Kristi asked him to find a gun for her.

¶ 23. The Supreme Court has stated:

Few rights are more fundamental than that of an accused to present witnesses in his own defense. In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. Although perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed. The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to Chambers’ defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.

Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1050, 35 L.Ed.2d 297, 312-13 (1973) (citations omitted) (emphasis added).

IV. EXCLUSION OF VIDEOTAPE.

¶ 24. Tyler attempted to offer in his defense a video of Kristi and Joey’s appearance on the Montel Williams Show. The video would have been offered as evidence of Kristi’s motive to murder Joey. On the show, she admitted to having an affair with her husband’s best friend and subsequently having his friend’s child while the two were married. The tape would have revealed the tumultuous nature of their relationship. Kristi told Montel that Joey often told her that she would “burn in hell.” Joey also said that they fought on a daily basis:

Montel: So now there’s a baby here. But you said pointedly you want to keep her — or not keep her. You want to stay married, correct?

Joey: Yes.

Montel: But you’re going to make her pay.

Joey: I’m going to remind her of it every moment I get.

(Gasps from audience.)

Montel: Well, then, why stay together?

Joey: I love her. I mean, I really do. She messed up, big. I mean, tremendously big. I only throw it up in her face mainly when we get in big arguments.

Montel: How often is that?

Joey: Daily.

Kristi: No lie.

Montel: So you get in a big argument every day.

Joey: Pretty much.

¶ 25. Relying on Langston v. State, 373 So.2d 611, 613 (Miss.1979), and Brown v. State, 340 So.2d 718 (Miss.1976), the State argued that evidence presented on behalf of one defendant cannot unfairly prejudice the right of the co-defendant, and this evidence would be unfairly prejudicial to Kristi. The circuit court excluded the video on the grounds that it would violate M.R.E. 403 as “the probative value of th[e] evidence [was] substantially outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury.”

¶ 26. This ruling was erroneous. The cases cited by the State apply only where co-defendants are tried jointly. Here, Tyler was given a separate trial. Thus, the evidence is in no way unfairly prejudicial to Kristi because the evidence would not have been presented to her jury.

¶ 27. Exclusion of this highly relevant evidence was an abuse of discretion. We have long held that such evidence is relevant to show a person’s motive to kill. Montgomery v. State, 515 So.2d 845, 848 (Miss.1987) (evidence of a “turbulent relationship” between victim and defendant relevant to defendant’s motive); Church v. State, 182 Miss. 802, 808, 183 So. 525, 526 (1938) (evidence of extra-marital affairs relevant to show motive to kill spouse).

¶ 28. Exclusion of the videotape was an abuse of discretion.

VI. DENIAL OF RIGHT TO A FUNDAMENTALLY FAIR TRIAL.

¶ 29. “A criminal defendant is entitled to present his defense to the finder of fact, and it is fundamentally unfair to deny the jury the opportunity to consider the defendant’s defense where there is testimony to support the theory.” Terry v. State, 718 So.2d 1115, 1123 (Miss.1998) (citing Love v. State, 441 So.2d 1353, 1356 (Miss.1983)). In Terry, we reversed the conviction, holding that the defendant was entitled to have the jury determine whether someone else committed the crime. Id. at 1123. Here, the only direct evidence that Tyler was involved in Joey’s murder was Kristi’s allegations that Tyler killed Joey and Tyler’s disputed confession. Tyler had absolutely no motive to kill Joey other than to please Kristi. Tyler had no expectation of financial gain from Joey’s death. Kristi, on the other hand, had the means, the motive and the opportunity to kill Joey. See, e.g., Oswalt v. State, 885 So.2d 720, 723 (Miss.Ct.App.2004). Only she would benefit financially by his death. And, with Joey’s death, she would be delivered from an unhappy marriage.

¶ 30. Testimony at trial showed that Kristi and Joey had a tumultuous relationship. In the year prior to the murder, Kristi (while still married to Joey) was dating one man and then met Kyle Harvey. Kristi moved out of her house with Joey and began living with Harvey in Jackson; then she moved back in with Joey, but she continued to see Harvey. She led Harvey into believing that she and Joey were divorced. She had a child by a third man during her marriage with Joey. She would often manipulate Tyler into lying to her different boyfriends to cover some dishonesty. An essay he wrote for a school assignment showed that Tyler adored Kristi. He wrote, “I love my sister more than I love myself.” In order to manipulate Tyler to confess to killing Joey, Kristi told him that he would not go to jail for murdering Joey because he was a juvenile, and that if she was convicted, she would face capital murder charges and her children would be without a mother.

¶ 31. A few months before the murder, Kristi called the National Guard administrative office where Joey was stationed and inquired into the amount of life insurance Joey had. Kristi was unaware that Joey had changed the beneficiary on his $250,000 policy from Kristi to his mother, so she believed that she was the beneficiary of at least $300,000.

¶ 32. The circuit court’s refusal to allow Danny Edmonds to testify about Kristi wanting to kill Joey and the circuit court’s refusal to allow the jury to see the Montel Williams videotape clearly prejudiced Tyler. Even though the jury had before it some background evidence as to Kristi’s character, actions and motivation, the excluded evidence — that Kristi and Joey fought on a continuous basis and that Kristi desired to kill and was planning on killing Joey — -would have strengthened Tyler’s defense, possibly creating reasonable doubt in the minds of the jurors.

CONCLUSION

¶ 33. For the foregoing reasons, we reverse the judgments of the Circuit Court of Oktibbeha County and the Court of Appeals and remand this case to the Circuit Court of Oktibbeha County for a new trial in accordance with this opinion.

¶ 34. REVERSED AND REMANDED.

SMITH, C.J., DIAZ, P.J., CARLSON, GRAVES AND RANDOLPH, JJ„ CONCUR. DIAZ, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. RANDOLPH, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, P.J., AND CARLSON, J. SMITH, C.J., JOINS IN PART. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION. DICKINSON, J., NOT PARTICIPATING.

. The rendition of facts is based on the Court of Appeals' majority opinion. Edmonds, 955 So.2d at 867-69, 2006 WL 1073460, at **2-7, 2006 Miss. Ct.App. LEXIS 311, 4-18.

. Under the Mississippi Rules of Evidence, the hearsay statements of a witness who is unavailable to testify at trial may be admissible. Rule 804 provides in pertinent part:

(b) Hearsay Exceptions....

(3) Statement Against Interest. A statement which was at the time of its making so far ... tended to subject [the declarant] to civil or criminal liability, ... that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

. Note that these cases use permissive language instead of obligatory language: if a defendant wishes to call someone to the stand for the jury to observe the witness invoke the Fifth, he has the right to do so, but it is not mandatory. See contra Slater v. State, 731 So.2d 1115, 1117-18 (Miss.1999) (asserter of the privilege must be called to the stand and there refuse to testily before he becomes unavailable).