Clark v. State

• Decision Date: 21 October 2004
• Docket Number: No. 2003-KA-00946-SCT.,2003-KA-00946-SCT.
• Citation: 891 So.2d 136
• Parties: Clifton CLARK a/k/a Clifton Burns Clark, III v. STATE of Mississippi.
• Court: Mississippi Supreme Court

891 So.2d 136

Clifton CLARK a/k/a Clifton Burns Clark, III v. STATE of Mississippi.

No. 2003-KA-00946-SCT.

Supreme Court of Mississippi.

October 21, 2004.

Rehearing Denied January 20, 2005.

Anthony J. Buckley, Laurel, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorneys for appellee.

EN BANC.

SMITH, Chief Justice, for the Court.

¶ 1. Clifton Clark and Michael Barnes were indicted for armed robbery by the grand jury in Forrest County, Mississippi. Clark was tried and convicted of armed robbery pursuant to Miss.Code Ann. § 97-3-79 (Rev.2000). Although the jury found Clark guilty of armed robbery, it was unable to reach a verdict as to his sentence, and the court sentenced Clark to serve 54 years in the custody of the Mississippi Department of Corrections.

FACTS

¶ 2. On September 7, 2002, an armed robbery was committed at an Amoco Food Store in Hattiesburg, Mississippi. Two men entered the Amoco and demanded money from the two clerks. Both men were wearing camouflage shirts, and they tied red rags on their faces for concealment. The significantly taller of the two men was armed with a pistol. After collecting approximately $186 from the clerks, the two men fled the store on foot. The entire incident was captured on video by the store's surveillance system. Clifton Clark and Michael Barnes were arrested and later indicted for armed robbery.

¶ 3. At Clark's trial, the State called several witnesses to testify against Clark. Those witnesses included: the two clerks manning the store at the time of the robbery; two police officers; a patron of the Amoco who was pumping gas at the time of the night of the robbery; Clark's former roommate; Clark's former girlfriend; and his accomplice to the crime — Michael Barnes. With the exception of Michael Barnes, each witness gave testimony of the crime which was recorded by the court.

¶ 4. Barnes refused to testify to anything concerning the Amoco robbery, even after the trial judge ordered him to do so. However, he did give a statement to Detective Sergeant Rusty Keys of the Hattiesburg Police Department regarding the Amoco armed robbery. This statement included a waiver of Barnes's Miranda rights and an account of the activities on the night of the robbery. Barnes's statement implicated Clark as the gunman during the Amoco robbery. This statement was signed by Michael Barnes and Detective Sergeant Rusty Keys. In spite of this statement, Barnes refused to testify against Clark. Detective Keys testified that Barnes confessed to him that he was afraid for his life.

¶ 5. Barnes stated that the reason he gave the statement was that he "was given the impression that [Clark] turned [him] in, and [he] was trying to shoot back at him." In addition, Barnes contends that he asked for an attorney a number of times and Detective Keys coerced him into making a statement.

¶ 6. Since Barnes would not testify, the State claimed that he was an unavailable witness under the rules of evidence and hearsay exception. Therefore, the State called Detective Keys to the stand to read Barnes's statement into evidence. Defense counsel objected to the statement being read into the record because it deprived Clark of the opportunity to cross-examine Barnes. Nevertheless, the court allowed the statement to be read into the record.

¶ 7. Clark testified on his own behalf that he had been at home on the night of the robbery. He stated that Barnes showed up at his house around the time that the ten o'clock news began. He testified that Barnes was "real jittery and nervous and wanted to watch the news." Clark said that he and Barnes watched a news story about the Amoco robbery. While he never directly implicated himself in the robbery, Barnes "kind of hinted around" such that Clark "kind of got the — kind of figured this." Clark specifically denied robbing the store.

¶ 8. Mandy Weathers, Clark's roommate at the time, testified at trial that Clark and Barnes came into her room the night of the Amoco robbery. She also testified that Clark and Barnes switched the television channel to the evening news and admitted to robbing the store with the gun that Clark had given to her a couple of days before. Weathers went further stating that Barnes had threatened her with a handgun for signing a statement against him and on a subsequent occasion offered her money for her silence.

¶ 9. Latosha Fairley, Clark's girlfriend at the time, testified at trial that she had seen the video of the robbery and determined that the gunman's build and mannerisms were those of Clifton Clark. Furthermore, Fairley acknowledged that her suspicions were confirmed when she asked Clark point blank if he had committed the robbery and he answered in the affirmative.

DISCUSSION

¶ 10. Clark raises two issues in this appeal. The first is whether Clark was deprived of his Sixth Amendment right to confront and cross-examine a witness once the Forrest County Circuit Court admitted into evidence, over objection, Barnes's statement after Barnes refused to testify. Additionally, Clark contends that the trial court compounded it error in admitting Barnes's statement by refusing Clark's two requested limiting instructions.

¶ 11. The standard of review this Court uses regarding admission or exclusion of evidence is the abuse of discretion standard. Herring v. Poirrier, 797 So.2d 797, 804 (Miss.2000). "The trial judge is empowered with the discretion to consider and to decide what evidence is admissible, and unless this judicial discretion is so abused as to be prejudicial to the accused, then, the ruling of the lower court must be affirmed." Id.

I. Admission of Barnes's statement

¶ 12. Clark is guaranteed the right to cross-examine Barnes by our federal and state constitutions. U.S. Const. amend. VI; Miss. Const. art. 3, § 26. Since Barnes refused to testify at trial and his statement was nevertheless read into the record by Officer Keys, this Court must determine whether Clark's constitutional right was violated. The United States Supreme Court has recently ruled that "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004).

¶ 13. In Crawford, the State tried the petitioner for assault and the attempted murder of a man who allegedly tried to rape his wife. 541 U.S. at ___, 124 S.Ct. at 1356. At trial the State was allowed to introduce a statement, made by the petitioner's wife to the authorities, over an objection by the petitioner that the statement was in violation of his Sixth Amendment right to confront witnesses against him. Id. at 1357. The statement was evidence contrary to the petitioner's contention that the stabbing was in self-defense. Id. at 1355. The wife of the petitioner did not testify at trial due to the State's marital privilege. Id. Further, the statement was admitted at trial because the statement was deemed reliable in accordance with the United States Supreme Court decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). In Roberts the Supreme Court explained that:

when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Id. at 66, 100 S.Ct. at 2539 (footnote omitted).

¶ 14. This year in Crawford the Supreme Court abrogated Roberts by holding:

Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations....

In this case, the State admitted Sylvia's [the wife's] testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. Roberts notwithstanding, we decline to mine the record in search of indicia of reliability. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.

Crawford, 541 U.S. at ___, 124 S.Ct. at 1374 (footnote omitted).

¶ 15. In Crawford, the defendant's wife clearly gave a testimonial statement to the police regarding her husband's alleged crime. Subsequently, a tape of her statement was played at trial over objection by defense counsel. Due to the State's martial privilege, there was no prior opportunity for the defense to cross-examine her. The United States Supreme Court reasoned that the testimonial statement given by the wife was barred due to a lack of a prior opportunity for cross-examination regardless of the reliability of the testimonial statement. Id. at 1374.

¶ 16. Similarly, Clark's accomplice, Barnes, unquestionably gave a testimonial statement to Officer Rusty Keys regarding the armed robbery of the Amoco. Although Barnes initially took the stand at trial, he promptly informed the trial court that he would not testify. After deliberation by the trial court, Officer Keys was allowed to read Barnes's statement to the jury in spite of Clark's objection. Consequently, Clark was not afforded an opportunity to cross-examine Barnes. This is the very kind of violation that Crawford seeks to abolish. Therefore, the trial court erred in admitting Barnes'...