Cummins v. State

• Citation: 515 So.2d 869
• Decision Date: 04 November 1987
• Docket Number: No. 58308,58308
• Parties: Billy CUMMINS v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 869

515 So.2d 869

Billy CUMMINS v. STATE of Mississippi.

No. 58308.

Supreme Court of Mississippi.

Nov. 4, 1987.

Rehearing Denied Dec. 9, 1987.

P.J. Townsend, Jr., Townsend, McWilliams & Holladay, Drew, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court:

Billy Cummins was a Sunflower County Supervisor. On March 23, 1987, he was convicted of receiving stolen property in violation of Section 97-17-69, Mississippi Code Annotated (1972). Cummins was sentenced to two (2) years imprisonment, which was suspended; placed on unsupervised probation for two (2) years; fined $5,000.00; and removed from office.

Cummins assigns six errors on this appeal:

I. The indictment was fatally defective and the proof insufficient to convict in failing to allege or prove ownership of the property allegedly stolen and described in the indictment;

II. The State failed to advise the jury that Ray Thomas, who allegedly sold the chemicals to the defendant, and James Eugene Powell, who allegedly stole the chemicals, had been granted immunity for their testimony;

III. The admission of hearsay statements made by Bill Cummins, Jr., through Robert Malone on rebuttal, was not in accord with the spirit or the letter of Rule 803(24) or Rule 804(b)(5) of the Mississippi Rules of Evidence and the admission of such evidence denied the defendant his right to confront witnesses against him;

IV. The admission of the testimony of Officer Robert Malone after the defense rested constituted improper rebuttal testimony and violated the defendant's right to a fair trial;

V. The State failed to advise the defendant, in response to defendant's exculpatory Brady type motion, that the authorities in Louisiana advised that no chemicals were reported stolen; and

VI. The court failed to instruct the jury that the receiving must be with felonious intent.

I. WAS THE INDICTMENT FATALLY DEFECTIVE AND THE PROOF INSUFFICIENT TO CONVICT IN FAILING TO ALLEGE OR PROVE OWNERSHIP OF THE PROPERTY ALLEGEDLY STOLEN AND DESCRIBED IN THE INDICTMENT?

On January 23, 1987, an indictment was filed charging Billy Cummins, a Sunflower County Supervisor, with receiving stolen property. The indictment alleged that the property which he had received had been "recently stolen from farms in Concordia Parish, Louisiana." Cummins was arrested and released on bond. On the day of the trial, before any proof was offered, Cummins moved to quash the indictment on the ground that it failed to allege ownership of the property. At trial, the State offered James Powell, a self proclaimed professional thief, who claimed to have helped police solve 170 cases of stolen property including the case at hand. Powell testified that he stole the chemicals found in Cummins' shop. When asked where the chemicals had been stolen from Powell responded as follows:

A. Down in Concordia Parish, Louisiana--in the southern part of Louisiana. They were on a farm out in the country.

Q. Do you know whose farm that was?

A. I don't know the individual's name. The Louisiana authorities have that information.

During the hearing on Cummins' motion for a new trial the assistant district attorney revealed to the court that the State did not know to whom the property belonged. She stipulated that she had spoken with the Concordia Parish authorities and was told they had no reports of chemicals being stolen.

Cummins filed a supplemental motion for a new trial based on the State's failure to reveal this information. The motion was denied.

Although it is not briefed as such, this assignment is one which falls under Rule 2.05 of the Uniform Criminal Rules of Circuit Court Practice which provides in pertinent part:

The indictment upon which the defendant is to be tried shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him....

Further, this Court has held that if a statute fully and clearly defines an offense, an indictment in the language of the statute is sufficient. Johnson v. State, 475 So.2d 1136 (Miss.1985), citing Jackson v. State, 420 So.2d 1045 (Miss.1982). The indictment in question charged Cummins with receiving stolen goods, knowing them to be stolen, and provided a sufficient description of the goods to enable Cummins to prepare his defense.

Because we find that Cummins' indictment fairly tracks the language of the statute, and is in fact more specific than the statute, we find it also sufficient under Rule 2.05. Accordingly, we find Cummins' first assignment of error without merit.

II. DID THE STATE'S FAILURE TO ADVISE THE JURY THAT RAY THOMAS, WHO ALLEGEDLY SOLD THE CHEMICALS TO CUMMINS, AND JAMES EUGENE POWELL, WHO ALLEGEDLY STOLE THE CHEMICALS, HAD BEEN GRANTED IMMUNITY FOR THEIR TESTIMONY CONSTITUTE REVERSIBLE ERROR?

Cummins never offered any objection or jury instructions on this matter; therefore consideration of this assignment is procedurally barred and we do not reach its merits. Gray v. State, 487 So.2d 1304 (Miss.1986); Gray v. State, 472 So.2d 409 (Miss.1985); Shelton v. State, 445 So.2d 844 (Miss.1984); Rule 42, Miss.Sup.Ct.Rules.

III. WHETHER ADMISSION OF HEARSAY STATEMENTS MADE BY BILL CUMMINS, JR., THROUGH THE WITNESS, ROBERT MALONE, ON REBUTTAL, WAS NOT IN ACCORD WITH RULE 803(24) OR RULE 804(b)(5) OF THE MISSISSIPPI RULES OF EVIDENCE AND THE ADMISSION OF SUCH EVIDENCE DENIED THE DEFENDANT HIS RIGHT TO CONFRONT WITNESSES AGAINST HIM?

IV.

WHETHER ADMISSION OF THE TESTIMONY OF OFFICER ROBERT MALONE AFTER THE DEFENSE RESTED CONSTITUTED IMPROPER REBUTTAL TESTIMONY AND VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.

Two days before the beginning of the trial the State attempted to subpoena Cummins' son (Bill, Jr.) but found that he was out of town. When the subpoena was returned unexecuted, the State served notice pursuant to Rule 803(24), Mississippi Rules of Evidence that it intended to use an oral statement made by Bill Cummins, Jr., "I told daddy not to fool with that damned man, Ray Thomas. I used some of the chemicals, do you want me to replace them?" This notice was given one day before the beginning of the trial. The trial judge allowed these and other out of court declarations of Bill Cummins, Jr., to be admitted through the State's rebuttal witness, Robert Malone.

Cummins contends that Rule 803(24) did not permit the admission of the hearsay testimony against him arguing that the language of the rule itself and the advisory committee notes preclude the admission of this evidence. Cummins believes that the erroneous admission of the hearsay evidence denied him a fair trial. The State argues that the testimony was admissible under Rule 803(24) or Rule 804(b)(5), Mississippi Rules of Evidence. The authority advanced in support of these propositions will be examined in the analysis of the rule.

Rule 803(24) provides:

Hearsay Exceptions; Availability of Declarant Immaterial.

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Rule 804(b)(5) provides the same treatment when the declarant is unavailable.

Before any evidence may be admitted under the residual exceptions to the hearsay rule the following conditions must be met. These are:

(1) The proponent of the evidence must give the adverse party the notice specified within the rule.

(2) The statement must have circumstantial guarantees of trustworthiness equivalent to the 23 specified exceptions listed in Rule 803.

(3) The statement must be offered as evidence of a material fact.

(4) The statement must be more probative on the point for which it is offered than any other evidence the proponent can procure through reasonable efforts.

(5) The general purposes of the Federal Rules and the interests of justice must best be served by admission of the statement into evidence.

United States v. Mathis, 559 F.2d 294 (5th Cir.1977). When interpreting the identical Federal Rules of Evidence courts have required that these findings be made explicitly on the record. See United States v. Guevara, 598 F.2d 1094, 1100 (7th Cir.1979).

Because we find that the proceedings below did not satisfy the above requirements we reverse and remand offering the following guidance:

The residual exceptions to the hearsay rule require that the proponent of evidence to be offered must give notice to the party against whom the evidence is to be offered. This notice should be given "sufficiently in advance of the trial or hearing to provide ... a fair opportunity to meet it...." United States v. Mathis, 559 F.2d 294, 299 (5th Cir.1977). It should be determined by the trial judge whether the notice given was sufficient. Great latitude is usually allowed depending on the facts and circumstances of each case and the context in which the evidence arises. United States v. One 1968 Piper Navajo Twin Engine...