Welch v. State

For the Court:

I.

On October 7, 1986, the badly beaten body of Joseph Ray Heath was found in a rural area of DeSoto County, near Arka-butla Lake. The body was partially clothed. The cause of death was confirmed by pathologist Thomas McLees to be multiple severe trauma.

Walter Robertson and James Cole, employees of the U.S. Army Corps of Engineers, found the decedent Heath. Mississippi Highway Patrol Criminal Investigator Jay Clark and Officer Jimmy Dees were called to the scene where they found the body, face down with arms outstretched over the head, clothed in a T-shirt, blue jeans pulled down to the knees, underwear and one sock.

Investigation of the DeSoto County, Mississippi, records revealed that Heath had been arrested by the Southhaven Police for public drunkenness several weeks earlier, and had been released on bond. Examination of the Bonding Company’s records furnished the names of Robina Welch, “his aunt,” and Mark “Bubba” Welch, “best friend/cousin.”

Officer Jimmy Dees and Investigator Jay Clark spoke with Mark Welch in Memphis, Tennessee, the following day. Based on this conversation, the police considered Welch a suspect.

He was transported to the Memphis Police Station on October 8, 1986, where he was questioned by Investigator Clark in a tape-recorded conversation. He implicated two of his friends in the murder. That same day, approximately one hour after Welch’s questioning, Kenny Jones and Jim Parks’ statements were taken by Investigator Clark.

Although there were some discrepancies in the confessions, the evidence is clear that Kenny Jones killed Heath and that Welch and Jim Parks participated in beating Heath on the night in question. Kenny Jones and Jim Parks pled guilty to the murder. Welch refused, admitting that he did strike Health, but also stated that he had not intended to participate in the ultimate murder.

On the night of the murder, Jones, Parks, Heath and ■ Welch were playing cards and drinking whiskey and wine, at Welch and Kenny Jones’ trailer in Memphis, Tennessee. The mood turned belligerent and combative. Jones and Heath got into a heated fist-fight. Jones overpowered the inebriated Heath and Heath left on foot.

Shortly thereafter, Welch left in his truck with Parks. Down the road they ran into Heath. He joined them in the truck. They returned to the trailer and picked up Jones. All four proceeded to Polly William Park in Memphis where Heath was beaten by each of them.

They decided to go to Mississippi and “dump-off” Heath. He was loaded back in the bed of the truck along with Jones. It is not known what incited Jones, but he decided he was going to kill Heath. He wrapped jumper cables he found in the bed of the truck around Heath’s neck and started strangling him.

Once in Mississippi Welch stopped at a store on Highway 301 and instructed Jones to leave Heath alone. At that point Jones let Welch in on his intentions to kill Heath. He pushed Welch up against the truck in a threatening manner, stating he would kill him if he did not acquiesce. Parks persuaded Jones to leave Welch alone.

Welch next stopped near Arkabutla Lake, in DeSoto County, Mississippi, because the truck was overheating. He got out to get some water at a pumping station. Jones pulled Heath out of the truck. Heath kept telling Jones to leave him alone. Jones then hit Heath in the back of the head with a “buddy bar”, which is a large three-foot long iron bar, weighing sixty or seventy pounds.

Parks helped Jones drag Heath by his feet into the woods, but then came back to help Welch with the truck. Jones, making sure he had accomplished his task, struck Heath with the “buddy bar” repeatedly. He came out of the woods announcing that he had killed Heath.

The jury returned a verdict against Welch for murder. On July 3, 1987, the Circuit Court of DeSoto County sentenced Welch to life imprisonment. He then filed motions for judgment notwithstanding the verdict and for a new trial, which were denied. Accordingly, Welch brings this appeal.

II.

DID THE STATE FAIL TO TIMELY COMPLY WITH WELCH’S MOTION TO COMPEL DISCOVERY UNDER SECTION 4.06 OF THE MISSISSIPPI UNIFORM CRIMINAL RULES OF CIRCUIT COURT PRACTICE?

Welch raises several alleged discovery violations by the State. It is only necessary to address the State’s failure to produce the statements given by Kenny Jones and Jim Parks, because we find the other claims to be without merit.

On October 8, 1986, in a tape recorded conversation with the Memphis Police Department, Investigator Jay Clark interviewed Jones and Parks concerning Heath’s death. Investigator Jimmy Dees interviewed Jones again at the Tallahatchie County Jail on October 10, 1986, because his first statement was a total fabrication. Thereafter, both Jones and Parks confessed and pled guilty to the murder.

On December 18, 1986, Welch served the State with a discovery motion, requiring the state to produce all exculpatory materials within its possession. The State refused to disclose the taped statements, because in its judgment they were not exculpatory. On June 4, 1987, Welch filed a motion to compel discovery of Jones and Parks’ taped statements, and on June 12, 1987, filed a motion for a continuance because he had not been furnished copies. On June 15, 1987, the date of trial, the circuit court examined the three statements in camera and ruled that the statements were not discoverable.

Welch alleges that the State failed to comply with Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice and that under the holding of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, he was denied due process when the State declined to make available to him the statements of Jones and Parks.

It is submitted by Welch that the recorded confessions of Jones and Parks were exculpatory in several respects. He contends that the following constitute exculpatory statements made by Jones and Parks:

(1) Jones admitted that he had used the jumper cables to choke Heath;

(2) Jones admitted he hit Heath with the “buddy bar”, causing the serious head injury;

(3) Parks stated that he saw Jones grab Welch and threaten to kill him before and after the murder;

(4) Parks and Jones stated that Parks and Welch were putting water in the truck when Jones killed Heath;

(5) Welch was the only one who did not have to burn his clothes;

(6) Welch was an unwilling and unknowing bystander to the murder; and

(7) Jones told Parks he was serious about his intentions to kill Heath and that he felt Welch could not withstand interrogation, which showed that Welch had no knowledge that the killing was going to take place.

Rule 4.06 of the Uniform Criminal Rules provides, in pertinent part:

(a) The prosecution shall disclose to each defendant or to his attorney, and permit him to inspect, copy, test, and photograph upon request and without further order the following:

⅝: ⅜ ⅝ ¡ft ⅜ *

6) Copy of any exculpatory material concerning defendant.

* * * * * #

In addressing the primary question of exculpatory evidence this Court has afforded broad discretion to the trial judge in deciding when to permit a defendant to examine the statements of the prosecution’s witnesses. Williams v. State, 544 So.2d 782 (Miss.1989); Barnes v. State, 460 So.2d 126 (Miss.1984). Upon extensive review, however, we find that Jones and Parks’ statements were exculpatory within the meaning and contemplation of the Rule 4.06(a)(6). The State should have provided Welch with the statements, and it was reversible error for the circuit court to hold otherwise.

In Hentz v. State, 489 So.2d 1386 (Miss.1986), we stated:

An important question in discovery, such as involved here, is who is going to determine whether or not tapes or written instruments are exculpatory or important to the defense, if counsel is unable to see, hear, or know what is contained therein? Is the State attorney the only person who will make that determination? We think not. The Court now declares that as a matter of good practice and sound judgment in the trial of criminal cases, prosecuting attorneys should make available to attorneys for defendants all such material in their files and let the defense attorneys determine whether or not the material is useful in the defense of the case. We direct the attention of trial judges to this problem and suggest that they diligently implement this suggestion in order to dispense with costly errors, which might cause reversal of the case. Barnes v. State, 460 So.2d 126 (Miss.1984); Harris v. State, 446 So.2d 585 (Miss.1984); Morris v. State, 436 So.2d 1381 (Miss.1983).

489 So.2d at 1388.

This case typifies our concern espoused in Hentz. The statements were replete with facts that could have aided Welch in his defense. In Parks’ statements, he made several references to the fact that he and Welch were not involved in the murder, that Jones murdered Heath, and that Jones threatened Welch. In Jones’ statement, he admitted strangling Heath with the jumper cables and striking the fatal blow with the “buddy bar”, but stated he was “fuzzy” about other details which was attributable to his intoxication. Jones never implicated Welch. These facts substantiate Welch’s primary defense that he did not know that Jones planned to murder Heath nor did he participate in the murder. Also, it substantiates the fact that Jones threatened Welch’s life when he told Jones to leave Heath alone.

It should be noted that Welch was supplied with copies of the statements in question at trial during his cross-examination of Investigator Clark. This production, however, was not sufficient to comply with Rule 4.06(a)(6). Discovery must be provided at a time far enough in advance of trial to give the defense a “meaningful opportunity” to make use of it. Inman v. State, 515 So.2d 1150 (Miss.1987); Stewart v. State, 512 So.2d 889 (Miss.1987). In no way did the receipt of these statements during trial give Welch a “meaningful opportunity” to make use of them. Defense counsel was entitled to have access prior to trial. Since he was not given such access, a reversal of Welch’s conviction is warranted.

III.

Several other assignments of error were asserted by Welch concerning the proceedings below. Because we reverse on the discovery violation we need not address these other alleged errors. We will, however, summarily address several alleged errors concerning the introduction into evidence of Jones and Parks’s confessions, the introduction of certain photographs, and certain defects in the jury instructions. This will be of consequence to the circuit court on remand.

First, it was error to allow the State to introduce into evidence the statements of Jones and Parks over Welch’s confrontation objection. The evidence was admitted under Rule 106 of the Miss. Rules of Evidence, which was incorrectly interpreted by the trial judge. The rule first contemplates the introduction of a writing by a party, then a contemporaneous introduction of other parts of the statements to prevent the misleading of the jury.

Defense counsel was merely questioning Investigator Clark during cross-examination about his investigation of Jones and Parks. He in no way introduced parts of these statements into evidence. Curiously enough, defense counsel had never had access to or even seen these statements prior to cross-examination. There is also serious confrontation problems. The jury was unable to observe the demeanor of Jones and Parks when they,made the unsworn statements and the statements were taken under the coercive atmosphere of police interrogation.

Second, it was error not to allow Welch’s proffered lesser-included offense manslaughter instructions. Lesser-included offense instructions should be given if there is an evidentiary basis in the record that would permit a jury rationally to find the defendant guilty of the lesser offense and to acquit him of the greater offense. McGowan v. State, 541 So.2d 1027 (Miss.1989); Lee v. State, 469 So.2d 1225 (Miss.1985); Ruffin v. State, 444 So.2d 839 (Miss.1984). In McGowan, citing Harper v. State, 478 So.2d 1017, 1021 (Miss.1985), we stated the evidentiary standard as follows:

A lesser-included offense instruction should be granted unless the trial judge and ultimately this Court can say, taking the evidence in the light most favorable to the accused and considering all the reasonable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of a lesser-included offense (conversely, not guilty of at least one essential element of the principal charge).

McGowan at 1028.

Miss.Code Ann., Sec. 97-3-27 (1972), As Amended, authorizes a conviction of manslaughter when a person is slain without malice during the commission of certain felonies, including kidnapping. In Griffin v. State, 293 So.2d 810 (Miss.1974), we held that the defendant could be convicted for manslaughter under Miss.Code Ann., Sec. 97-3-27 when he participated in the kidnapping, but did not participate in the actual killing. Taking the evidence in the light most favorable to Welch, the jury could have found that Welch lacked the requisite intent of malice aforethought to assist in the murder but that he did participate in the kidnapping. The manslaughter instructions should have been allowed.

It was also error for the trial court not to allow Welch’s instruction relating to his theory of defense. Defendants are entitled to have instructions on their theory of the case presented to the jury for which there is foundation in evidence, even though the evidence might be weak, insufficient, inconsistent, or of doubtful credibility, and even though the sole testimony in support of the defense is the defendant’s own testimony. U.S. v. Young, 464 F.2d 160, appeal after remand 482 F.2d 993 (5th Cir.1973); Gandy v. State, 355 So.2d 1096 (Miss.1978). The preceding instruction presented Welch’s version of his defense and the facts testified to at trial; accordingly, it should have been submitted to the jury.

The following issue was not submitted to this Court on appeal but it constitutes such an egregious error that it must be addressed. The State proffered the instruction below, which was submitted to the jury:

The Court instructs the Jury that under the laws of the State of Mississippi, fear, coercion or duress is no defense to the charge of murder, and this is true regardless of who struck the fatal blow. Accordingly, if you find from the evidence in this case, beyond a reasonable doubt, that the Defendant was an accessory before the fact to the murder of Joseph Heath, as defined by the Court’s Instructions, then even if the Defendant was frightened, coerced, or forced, such is not to be considered by you and is no defense in this case, (Emphasis added).

This instruction is contrary to the laws of this state. Welch was tried as an accessory before the fact. To be convicted as an accessory the defendant must possess the mens rea for the commission of the crime. The precise state of mind of the defendant has great significance in determining the degree of his guilt. An accomplice may be convicted of accomplice liability only for those crimes as to which he personally has the requisite mental state. He must have a “community of intent” for the commission of the crime. Malone v. State, 486 So.2d 360 (Miss.1986); Shedd v. State, 228 Miss. 381, 87 So.2d 898 (1956).

The State’s instruction instructs the jury that even if Welch was forced or coerced, this fact could not be considered by them. The cumulative effect of this instruction is that Welch is guilty of murder regardless of his mental state. This instruction affirmatively negates the mens rea requirement and should not have been given.

Lastly, the probative value of a number of the color autopsy photographs is questionable. Several photographs were introduced into evidence of the dissected cadaver. They show the cadaver cut open in a Y-shape manner with the ribcage refracted back over the face of the victim, the anteri- or part of the thoracic cavity, the ribs and the sternum, the ribs removed from the body; the abdominal walls including the intestines which have been opened up, and organs that have been removed from the cadaver.

Generally, the rule is that the admissibility of photographs rests within the trial court’s sound discretion. We will not reverse a lower court on the ground that photographs of the deceased were admitted into evidence unless the lower court abused its discretion. Marks v. State, 532 So.2d 976 (Miss.1988); McFee v. State, 511 So.2d 130 (Miss.1987). Gruesome photos which have no evidentiary purpose or probative value except to inflame and arouse the emotion of the jury, however, should not be admitted. McNeal v. State, 551 So.2d 151 (Miss.1989); Cabello v. State, 471 So.2d 332 (Miss.1985); Billiot v. State, 454 So.2d 445 (Miss.1984).

It is hard to imagine, upon review, what the probative value was in allowing photographs of the dissected cadaver into evidence during Welch’s trial. They do not show the circumstances surrounding death, the cruelty of the crime, the place of the wounds, or the extent of force or violence used. The photographs were extremely unpleasant and used in such a way as to be overly prejudicial and inflammatory.

REVERSED AND REMANDED.

DAN M. LEE, P.J., and PRATHER, ROBERTSON, ANDERSON and BLASS, JJ., concur.

HAWKINS, P.J., and ROY NOBLE LEE, C.J., concur in part, and dissent in part.

PITTMAN, J., not participating.