Moffett v. State

I.

On the evening of December 27, 1980, a white, female, self-service gas station attendant was robbed, shot and killed while on the job in Gulfport, Mississippi. Two days later James Vincent Moffett was arrested on an unrelated charge, but in due course thereafter was indicted on the charge of capital murder arising out of this incident. Trial saw a Harrison County jury on July 15, 1981 find Moffett guilty of capital murder and sentence him to death. Moffett appeals his conviction and sentence.

The primary questions before us today arise out of the manner in which the trial judge allowed the State to handle its witness, Garland Mose Johnson, at trial. First, the trial judge erroneously allowed the State to cross-examine its own witness and subsequently to impeach him with an inconsistent, prior, unsworn, out-of-court statement. Second, the trial judge erroneously allowed the State to have the statement admitted as evidence, whereupon the prosecuting attorneys proceeded to argue to the jury that it should be used to find guilt. We reverse.

II.

On the evening of December 27, 1980, Helen Allen was working her job at the Coastal Energy Station in Gulfport. This establishment is self-service gas station comprised of gasoline pumps and a small booth for the cashier. Helen Allen was the cashier in the booth.

The evidence reflects that at approximately 10:00 p.m. that evening, someone came up to the booth where Helen Allen was working, fired one gunshot through the plexi-glass wall of the booth into the head of Helen Allen and thereby killed her.

Shortly thereafter, Barbara Tenneson, who lived in an apartment complex nearby, came to the service station to buy a pack of cigarettes. She could not see the attendant. Along with an unidentified man who was waiting to buy gasoline, Mrs. Tenne-son waited for the attendant to appear. In a little while, the would-be gas purchaser gave up and left. About the same time, Mrs. Tenneson’s husband came to the service station and both of them looked around. When they could not find the attendant, Mr. Tenneson thought something must be wrong and the police were called. After about thirty minutes from when Mrs. Tenneson first came to the gasoline station, she and her husband discovered Helen Allen’s body on the floor in the Cashier’s booth. Mrs. Tenneson testified that the cash register was wide open with no money in it.

Police officer Charles Rogers testified that he was not sure if the cash register had any money in it but that there was money on the counter — how much he did not know. Detective Ernest R. Cook of the Gulfport Police Department testified there were several stacks of currency on the counter and that the drawer of the cash register had money in it. There was no usable fingerprint evidence at the crime scene. There were no ballistics reports admitted as evidence in this ease.

III.

The most damaging evidence adduced against Moffett at his trial came through the witness Garland Mose Johnson, said to be Moffett’s half-brother. Without the introduction into evidence of the transcription of an interview with Johnson had by law enforcement authorities on March 2, 1981, the case against Moffett would have been weak to say the least. Hence the dispositive issues on this appeal surround the Johnson testimony.

Johnson was arrested on December 29, 1980, several hours before Moffett’s arrest. Johnson’s arrest was on charges unrelated to the capital murder with which we are here concerned. Johnson remained in custody in Harrison County continuously from December 29, 1980 until Moffett’s trial in July of 1981.

On March 2, 1981 Johnson was interviewed by Detective Cook. Sitting in as a witness was Detective Parham Bridges. The interview was video taped.

The substance of the interview was Johnson’s statement to the effect that at about 10:00 or 10:30 on the evening of December 27, 1980, he and Moffett drove to and parked in the area of an apartment complex known as Medallion Apartments. Moffett was driving the car. Johnson says Moffett left, although he (Johnson) did not know where Moffett was going. Johnson slid over into the driver’s seat and turned the radio on low. Minutes later Johnson says he heard a gunshot. “All of a sudden I see him [Moffett] come running back to the car. So he jumps in and says ... let’s go to north Gulfport.”

Because the Medallion Apartments are located only a stone’s throw from the self-service gas station and because Johnson’s statement refers to the incident as having occurred shortly after ten o’clock on the evening of December 27, 1980, this statement substantially implicates Moffett in the robbery and murder. The State assumed that it had a reliable witness who would place Moffett at the scene of the crime at or about the time of the crime.

On June 30, 1981, Moffett’s attorneys interviewed Johnson. At that time Johnson said that he knew nothing about the robbery or murder, that on the evening in question he had been with Moffett, and that neither he nor Moffett went any where near the Medallion Apartments or the self-service gas station. Johnson told Moffett’s attorneys that he had given the police the statement of March 2, 1981, but that what he had said at that time was untrue.

On Friday, July 10, 1981, the attorneys for Moffett again interviewed Johnson. At this time Johnson was still in custody and had several charges pending against him unrelated to the capital murder with which we are here concerned. The record also reflects that there was at the time pending against Johnson a charge of accessory after the fact to the capital murder of Helen Allen. At that time Johnson was represented by counsel, and the interview was conducted with the advice and consent of Johnson’s counsel. The interview was tape recorded although not video taped.

In this July 10, 1981 interview, Johnson insisted again that he knew nothing of the December 27, 1980, shooting and corroborated Moffett’s alibi as he had indicated he would do earlier. He again explained that he gave the March 2, 1981 statement without the advice of counsel and because he was scared. He says he was afraid he was going to be charged with the Allen murder and this is the reason he decided to point the finger at his half-brother, James Vincent Moffett.

The capital murder trial of James Vincent Moffett was scheduled to begin in Circuit Court in Gulfport on the morning of July 13, 1981. At approximately 9:00 that morning, defense attorneys advised the district attorney what Johnson’s testimony would be. In anticipation of the State’s calling Johnson as a part of its ease in chief, the defense requested of the trial judge a preliminary ruling that the State be precluded from pleading surprise and, more specifically, that the State be precluded from treating Johnson as an adverse witness and thus subjecting him to leading questions on cross-examination. The trial judge held that the matter was premature until such time as Johnson actually took the stand.

The next day, July 14, 1981, Garland Mose Johnson was called by the State as its first witness following the noon lunch recess. The defense again sought a preliminary ruling regarding the manner in which these prosecuting attorneys could examine Johnson, and again the trial judge held that the matter was premature.

On direct examination, Johnson then testified under oath that on the evening of December 27, 1980 he was at the apartment of Kimberly Butler, that he received a call from Moffett at about 10:30 or so, that Moffett asked Johnson to come pick him up, that Johnson borrowed a car from a next-door neighbor and drove to Sally’s Bar in north Gulfport to pick up Moffett, that Moffett made a phone call to his girl friend and later wife, and that Johnson then took Moffett home.

Once it became apparent that this was what — and all — Johnson was going to say happened on the evening of December 27, 1980, the prosecuting attorney began inquiring about the video-taped interview of March 2, 1981. Johnson admitted that he had made the March 2, 1981 statement, admitted that what he said at the time was quite different from his in-court, under-oath testimony of July 14, 1981, and stated unequivocally that everything he had said on March 2, 1981 to law enforcement authorities was untrue.

At this point the prosecution pleaded surprise and sought the right to cross-examine Johnson. The defense objected, insisting that the State had called Johnson as its witness, that the State therefore vouched for his credibility, was precluded from asking him leading questions on cross-examination, and certainly could not impeach him. Defense counsel further insisted that the State was not in fact surprised, that the State knew as early as 9:00 on the preceding morning what Johnson’s testimony would be, and that the State put Johnson on the witness' stand knowing full well how he would testify.

An extensive in camera hearing followed, during the course of which the trial judge viewed in its entirety the video tape of the March 2, 1981 interview and listened to the audio tape of the July 10, 1981 interview. The trial judge ruled that the State was surprised and would be allowed to cross-examine and impeach the witness.

The prosecuting attorney then commenced a searing cross-examination of Johnson regarding the March 2, 1981 statement. Again, Johnson admitted that he made the statement, insisted that its contents were untrue, and reiterated that he made the statement because he was afraid that he would be charged with the murder. At no time did Johnson either deny having made the March 2, 1981 statement or admit under oath that any of its contents were true.

At the conclusion of the cross-examination, the State offered into evidence a five-page typed, transcript of the March 2, 1981 interview. The defense objected, urging that the statement could be used only to impeach the witness’ general credibility and not as substantive evidence. The prosecuting attorney seemed to concede the point stating:

Judge, for the purposes of, I’m not attempting to use this as substantive law [evidence (?)] because I think we’ve already made out a prima facie case with the testimony of Kimberly Butler. You know, I think I can, without his testimony, you know, in other words, without his testimony, I can get the jury.

The trial judge withheld the statement from the jury at that time. Subsequently, the statement was received into evidence and the State did in fact rely heavily on the statement as substantive evidence particularly in its final argument to the jury.

IV.

In this context, we are presented on this appeal with two distinct though interrelated questions:

(1) On these facts, was the State “surprised” so that it was entitled (a) to ask Johnson leading questions and (b) to impeach Johnson’s credibility?

(2) Assuming arguendo an affirmative answer to these questions, was the State entitled to have received into evidence the unsworn, out-of-court statement made by Johnson four and one-half months prior to trial?

A.

At common law a party was prohibited from impeaching his own witness. This has been the general rule in Mississippi. Moore v. Chicago, St. Louis & New Orleans R.R. Co., 59 Miss. 243, 248 (1881); Bove v. State, 185 Miss. 547, 554, 188 So. 557, 558 (1938); Manning v. State, 188 Miss. 393, 398, 195 So. 319, 320 (1940). The party calling the witness is said to vouch for his credibility. The underlying premise is that, a trial being a search for the truth, a litigant has no business presenting a witness whose credibility is open to serious doubt.

We recognize today that the rule is not in favor. It has become riddled with exceptions. See, e.g., Hall v. State, 250 Miss. 253, 165 So.2d 345 (1964) (“The State is not bound by the testimony of a witness who unexpectedly proves hostile).” It has been abrogated altogether in civil cases. Rule 43(b)(4) Miss.R.Civ.P., effective January 1, 1982, provides that the “credibility of a witness may be attacked by any party, including the party calling him.”

We are aware that there are pending before the Court at this time proposals that the rule be abrogated in all eases, not just civil. Those proposals are not made in this case. The State concedes that the rule still exists and remain enforceable in criminal cases, insisting only that this case falls within the well-recognized “surprise” exception. Indeed, if ever there be a case where the underlying premise of the rule is valid, it is when the State is selecting its witnesses in a capital murder trial.

All therefore agree that the State had no right to cross-examine Johnson and further to impeach Johnson on cross-examination, absent a showing that the State was genuinely surprised by Johnson’s testimony and that he had become unexpectedly hostile. The foundation which the State was required to lay in this case has been described authoritatively in Hall v. State, 250 Miss. 253, 165 So.2d 345 (1964):

The party must first show that the evidence as given, has taken him by surprise and that the witness is hostile. The witness may then be asked if he has made contradictory statements out of court, the times, places and circumstances of the details being described to him in detail. Underhill’s Criminal Evidence Vol. 1, 5th ed., p. 547.

250 Miss, at 264, 165 So.2d at 350.

On the other hand, where the witness’ repudiation of his prior statement is well known to the State’s attorney prior to the time the witness is called to testify, there is in fact and in law no surprise—and hence the State’s attorney cannot and may not claim surprise. Hall v. State, 250 Miss. 253, 263, 165 So.2d 345, 350 (1964); see Allison v. State, 447 So.2d 649, 650 (Miss.1984) (state must establish that it was taken by surprise); Young v. State, 425 So.2d 1022, 1028 (Miss.1983) (“evidence indicating surprise” necessary); Gardner v. State, 368 So.2d 245, 248 (Miss.1979) (“unexpectedly hostile”); Hooks v. State, 197 So.2d 238, 239-40 (Miss.1967) (must show that evidence has “taken him by surprise); Rutland v. State, 170 Miss. 650, 653-54, 155 So. 681, 681-82 (1934) (must be a situation where prosecutor was “deceived or mislead by fraud or artifice”). '•

The facts of this case make it clear that the foundation requirements for coming within the exception to the general rule have not been laid. The prosecution called Johnson to the stand as its witness as a part of its case in chief. The prosecuting attorneys knew well when Johnson was placed on the stand what his testimony would be, and, more specifically, that his testimony would be unfavorable to the State. The prosecuting attorneys knew that Johnson would repudiate his March 2, 1981 statement. They had known this for some 30 hours before Johnson was called. Under these circumstances, it was error for the trial judge to have allowed the district attorney, first, to cross-examine the State’s own witness and, second, to impeach his credibility regarding his direct testimony of what did and did not happen on the evening of December 27, 1980. See Young v. United States, 97 F.2d 200 (5th Cir.1938) (error to admit prior statements where prosecutor knew before placing witnesses on the stand that they would recant).

B.

A technically distinct, though practically linked question arises out of the trial judge’s ruling allowing the transcript of the March 2, 1981 statement to be received into evidence. Having concluded that the leading questions asked on cross-examination were improper and that the State did not come within the exception to the rule so as to be entitled to impeach its own witness, the trial court compounded the error by allowing the unsworn out-of-court statement to be used as substantive evidence against Moffett.

It is hornbook law, firmly embedded in the case law of this State, that unsworn prior inconsistent statements may be used for impeachment of the witness’ credibility regarding his testimony on direct examination. The prior inconsistent out-of-court statements made by one not a party may not be used as substantive evidence. Ellis & Williams, Mississippi Evidence 46 (1983); Davis v. State, 431 So.2d 468, 473 (Miss.1983); Magee v. Magee, 320 So.2d 779, 783 (Miss.1975); Sims v. State, 313 So.2d 388, 391 (Miss.1975); Hall v. State, 250 Miss. 253, 264, 165 So.2d 345, 350 (1964).

Where the non-party witness admits having made the prior, out-of-court statement, the statement where reduced to written form, should never be introduced into evidence.

If the witness confesses or admits having made prior inconsistent statements, ordinarily there is no necessity for further proof, as by the admission of the prior inconsistent written statement.

Davis v. State, 431 So.2d 468, 473 (Miss.1983); Sims v. State, 313 So.2d 388, 391 (Miss.1975); Hammons v. State, 291 So.2d 177, 179 (Miss.1974); Hall v. State, 250 Miss. 253, 264, 165 So.2d 345, 350 (1964); see Hubbard v. State, 437 So.2d 430, 434 (Miss.1983) (“obviously for impeachment purposes”); Murphy v. State, 336 So.2d 213, 216-17 (Miss.1976) (defendant entitled to instruction that prior inconsistent statement may not be used as proof of guilt).

Magee v. Magee, 320 So.2d 779 (Miss.1975) said of this rule:

[But impeachment] does not mean that the out-of-court statement became evidence on its merits or had any probative value_ The rule seems to be universal that the impeaching testimony does not' establish or in any way tend to establish the truth of the matters contained in the out-of-court contradictory statement.

320 So.2d at 783. See also 3 Wigmore, Evidence (3d ed. 1940) § 1018, n. 2.

The reason for this rule is apparent. One of the major premises underlying our rules of evidence is that no evidence may be credited which is not purified via the witnesses’ oaths that the evidence is true. These out-of-court statements have not been purified via this authentication process. While fairness dictates that wide latitude necessarily be allowed in cross-examination (assuming, of course, the witness is one the party has the right to cross-examine in the first place), the function of the prior inconsistent statement is to impeach the credibility of the witness’ direct testimony. It is to suggest to the fact finder that the direct testimony may not be true because the witness may not be worthy of belief with respect to the matter as to which he has testified.

There is a more practical reason why the statement should not have been given to the jury. The average juror will have a difficult enough time without the statement sitting in his lap keeping distinct in his mind that which he has heard as evidence and what he has been told may be considered for impeachment only. Many suggest it is folly to think juries can — or will even attempt to — keep this distinction in mind. Indeed, here we have a powerful, practical reason undergirding the rule discussed above that a party may not impeach his own witness. McCormick, Evidence § 38, at 75-76 (2d ed. 1972).

What the State was allowed to do in this case was to argue as substantive evidence the factual scenario attributed to Johnson by virtue of the March 2, 1981 interview when no witness at trial has stated on oath that those facts are true and correct. Given the underlying premises of our rules of evidence, such may not be permitted, particularly where the defendant is on trial for his life and where, if anything, the benefit of any reasonable doubt must be given the defendant. Williams v. State, 445 So.2d 798, 814 (Miss.1984); Gambrell v. State, 92 Miss. 728, 736, 46 So. 138, 139 (1908).

We note that the trial judge correctly instructed the jury that the impeaching statement could not be considered as substantive evidence touching Moffett’s guilt or innocence. Instruction No. D-21 provides:

The Court instructs the jury that if a witness recants, under oath, a prior un-sworn statement that witnesses credibility may then be impeached by the use of that prior inconsistent unsworn statement. However, that prior inconsistent unsworn statement cannot be considered by the jury as substantive evidence in the case. The prior inconsistent unsworn statement can only be used to show credibility.

We have considered whether this instruction may have cured the error. Upon reflection, this instruction makes us wonder why the prior unsworn statement was ever admitted in the first place, for the trial judge obviously knew what the law was on the point. Considering that the prior un-sworn statement was the sole support for a central issue in the case and considering the fact that the prosecuting attorney vigorously argued it as a reason why the jury should find Moffett guilty, the error was not cured.

Without the version of the facts related by Johnson on March 2, 1981, before the court as substantive evidence, the State’s case falls apart. The only other evidence the State offered implicating Moffett in the capital murder consists of the single hearsay statement by the witness Kimberly Butler that Moffett told her that “him and a partner tried to rob a gas station and a woman was shot in the process.... ” No other evidence even comes close to putting Moffett at the scene of the crime on the evening in question or otherwise implicating Moffett.

The two errors we have found regarding the testimony of the witness Garland Johnson, to-wit: allowing the prosecuting attorney to cross-examine and impeach Johnson and allowing the prior inconsistent out-of-court statement to be received as substantive evidence against Moffett, become crucial. No resort to notions of “death is different” or “heightened scrutiny,” see, e.g., Williams v. State, 445 So.2d 798, 810 (Miss.1983); Laney v. State, 421 So.2d 1216, 1217 (Miss.1982), is necessary for us to conclude that such errors so infected the proceedings below that Moffett has been denied a fair trial.

The judgment of July 15, 1981, entered by the Circuit Court of Harrison County, adjudging James Vincent Moffett guilty of the crime of capital murder and sentencing him to suffer death in the gas chamber shall be, and it hereby is, reversed and this case is remanded to the docket of the Circuit Court of Harrison County, Mississippi, for a new trial on all issues.

REVERSED AND REMANDED.

DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.

ROY NOBLE LEE, P.J., and HAWKINS, J., specially concur.

BOWLING, J., dissents.

PATTERSON, C.J., and WALKER, P.J., not participating.