Edwards v. State, 97-KA-01622 COA.

• Decision Date: 06 April 1999
• Docket Number: No. 97-KA-01622 COA.,97-KA-01622 COA.
• Citation: 736 So.2d 475
• Parties: Derrick Sentell EDWARDS, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

736 So.2d 475

Derrick Sentell EDWARDS, Appellant, v. STATE of Mississippi, Appellee.

No. 97-KA-01622 COA.

Court of Appeals of Mississippi.

April 6, 1999.

Ross R. Barnett, Jr., Jackson, Attorney for Appellant.

Office of the Attorney General by Pat S. Flynn, Attorney for Appellee.

EN BANC.

MODIFIED OPINION

ON MOTION FOR REHEARING

SOUTHWICK, J., for the Court:

¶ 1. The prior opinion is withdrawn and this opinion is substituted. The motion for rehearing is denied.

¶ 2. Derrick Edwards was convicted by a Winston County Circuit Court jury of murder. On appeal he argues that there was insufficient evidence or at least that the verdict was against the great weight of evidence; hearsay was improperly admitted; an invalid jury instruction was given; and a continuance was erroneously denied. We agree that hearsay should have been excluded and that the verdict was against the overwhelming weight of the evidence. We reverse and remand.

FACTS

¶ 3. William Scott Tatum was shot and killed in front of Hattie Edwards's home in Louisville on May 7, 1997, around 2:40 p.m. Hattie Edwards is the grandmother of defendant Derrick Edwards. Trial testimony indicated that Tatum had been parked in Alice Circle when he was approached by Derrick Edwards. After standing by Tatum's truck for several minutes, Edwards walked away. Tatum then drove off and within approximately ten minutes was parked in the driveway of Hattie Edwards's house on Jefferson Street. Jefferson is one block away from Alice Circle and can be reached by walking through a yard on Alice to the backyard of the Edwards' home on Jefferson. Tatum was shot shortly after parking in the driveway. Two witnesses testified to seeing Derrick Edwards run away from the area of the shooting, though not contemporaneously with the shots.

¶ 4. The key witness, Larry Warren, was seated in the passenger's seat of a jeep driven by Gary Porter which was proceeding northwards on Warner Avenue either crossing or about to cross Jefferson Street when Porter and Warren heard shots. Warren testified that he heard three shots and then turned to see someone shoot two more times at Tatum from close range. The Edwards' home where Tatum was shot was the second house from the Jefferson-Warner intersection. The certainty of Warren's identification of the shooter is central to several appellate issues.

¶ 5. Warren and Porter, along with a third person who did not testify, then turned around and went to the crime scene. Warren ran to his mother's house making statements implicating Derrick Edwards. Hattie Warren and Lakeesha Thames testified to hearing these statements though they differed on the contents. Thames and Michelle Woods testified to seeing Derrick Edwards run along a fence near the crime scene after the shooting. Thames saw Edwards after having seen the witness Larry Warren running. Woods saw Edwards ten to fifteen minutes after the shooting. Edwards was arrested later the same day.

¶ 6. In Larry Warren's statement to the police on the day of the shooting, he did not identify anyone as the shooter. The following day Warren gave a second statement saying that he thought Edwards was the person whom he saw. Warren testified this second statement was made after he was arrested by the police and told he could be charged with withholding evidence. Warren also said there was another person, besides the victim and defendant, present at the shooting though this individual was never identified. Larry Warren testified he thought it was Derrick Edwards he saw shoot the victim but admitted he was some 50 yards away from the scene and his view was obstructed by the victim's truck.

DISCUSSION

Issues 1 & 2: Evidence to support the verdict.

¶ 7. The question of admissibility of hearsay evidence is discussed in tandem with the weight and sufficiency issues as all are intertwined.

¶ 8. Two important sets of statements were made. One set was from witnesses who saw Edwards running after the shooting. The other set was from witnesses who overheard Larry Warren identify the shooter. Regarding the first set of statements, Officer Donnie Graham was allowed to testify by relating what he was told by witnesses during his investigation.

Q. Mr. Graham, did you have an occasion to talk to Michelle Woods and Lakeesha Thames?

A. Yes, we did.

Q. Did they tell you whether or not they heard the shots fired over close to the Edwards' residence?

A. I believe Miss Thames said she did not hear the shots but Miss Woods did.

Q. Shortly after the shots were fired did she identify any individual leaving from close proximity of the Edwards' residence?

A. Yes, she did.

Q. Who did she identify?

BY MR. AUSTIN: I am going to object to that. That is not the best evidence. She can testify as to whether or not she identified somebody.

BY MR. HORAN: Your Honor, this is identification after she perceived that individual, shortly after.

BY THE COURT: It's overruled.

Q. Did she identify anybody leaving from the Edwards' residence.

A. Both identified Derrick Edwards as running away from the residence.

¶ 9. Edwards argues that this was neither a permissible present sense impression nor excited utterance exception. The trial court did not specify the rule under which the admission was allowed. At trial, the State argued that this was "after she perceived that individual, shortly after." That appears to be a present sense impression argument.

¶ 10. The relevant evidentiary rule describes the present sense hearsay exception as permitting a "statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter." M.R.E. 803(1). This exception did not exist in Mississippi until the adoption of the Rules of Evidence in 1986. M.R.E. 803(1) cmt. The drafters of the rule emphasized that spontaneity is the critical element. Id. The supreme court has held that the "determination of spontaneity `is a question for the trial judge, whose action should not be overturned unless this Court would be justified in concluding that under all and any reasonable interpretation of the facts the exclamation could not have been spontaneous.'" Clark v. State, 693 So.2d 927, 932 (Miss.1997) (quoting Evans v. State, 547 So.2d 38, 41 (Miss.1989)).

¶ 11. The present sense impression rule requires a spontaneous statement, not one in response to a question. Had someone been told by or overheard one of these witnesses state at the time or soon after the event that she had seen Edwards running, then that is potentially admissible under this exception. For a witness to give a response to an officer's question is by definition not "spontaneous," no matter how soon it is made after the event that is the focus of the questioning. "Spontaneous" means "happening or arising without apparent external cause; self-generated." AM. HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (3d ed.1992) at 1741. Answering an officer's question is not a "self-generated" statement, but a police-generated one. These therefore were not present sense impressions.

¶ 12. Even though the trial court did not appear to rely on the excited utterance exception, we evaluate that hearsay rule as an independent ground for admission. Officer Graham did not identify Woods or Thames as being present at the scene when he arrived. The State argues that Graham "arrived at the scene within two or three minutes of the shooting." Actually, our reading of the transcript reveals that Graham was the third police officer on the scene and arrived within two or three minutes of getting the emergency call, not within two or three minutes of the shooting. Therefore it is unstated how long after the shooting these statements were made. When Graham talked to these witnesses was still further after the event.

¶ 13. The excited utterance exception applies to a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." M.R.E. 803(2). The "reliability of an excited utterance is based on the premise that circumstances may place the declarant in such an excited state as to temporarily impede the capacity for reflection." Owens v. State, 716 So.2d 534, 535-36 (Miss. 1998) (quoting Clark v. State, 693 So.2d 927, 932 (Miss.1997)). Owens reviewed the principal supreme court opinions that applied this exception.

This Court found in Clark [v. State, 693 So.2d 927, 932 (Miss.1997) ] that a woman's hysterical 911 call to the police while her estranged boyfriend was outside the door threatening to kill her with a shotgun qualified as an excited utterance under 803(2) and was properly admitted. The Court has approved other instances of hearsay statements rendered admissible by this exception. See Heflin v. State, 643 So.2d 512 (Miss.1994)

(sixteen year old alleged rape victim made statement to sister twentyfour hours after assault); Davis v. State, 611 So.2d 906 (Miss.1992)(eight year old child made statement to her aunt immediately after witnessing sexual assault of her mother); Berry v. State, 611 So.2d 924 (Miss.1992)(victim of shotgun blast identified assailant shortly after shooting and before death); Baine v. State, 606 So.2d 1076 (Miss.1992)(seven year old victim of sexual abuse made statement within minutes, and later hours, to her mother concerning abuse); Sanders v. State, 586 So.2d 792 (Miss.1991)(fourteen year old sexual battery victim made statement to police a short time after assault).

Owens, 716 So.2d at 536. Owens itself involved a statement made to police an hour after the declarant had been forced to jump out of a moving car. The court found that his statements were reflective and not under the influence of the exciting event. Id.

¶ 14. The trial court never found that these statements were excited utterances. Though a witness to the shooting itself certainly saw a startling event, these witnesses merely saw Edwards running. The officer never...