Gullett v. State
| Decision Date | 24 February 1988 |
| Docket Number | No. 57119,57119 |
| Citation | 523 So.2d 296 |
| Parties | John Tailer GULLETT, III v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Richard J. Lee, Wilroy, Lee & Scott, Hernando, for appellant.
Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.
En Banc.
I.
Today's is a case of overkill. Miffed at a prior acquittal in a capital murder trial, the prosecution sought and obtained a perjury indictment against an important defense witness. Then, in its zeal to get even with the alleged perjurer, the prosecution in the case now under review offered substantial quantities of marginally relevant hearsay evidence, admission of which was error.
For the reasons stated below, we reverse and remand for a new trial.
II.
In March, 1982, James Williamson (hereafter "Williamson") was allegedly murdered in Yalobusha County, Mississippi. On January 27, 1983, his wife, Cecilia "Cookie" Williamson, Larry Shelton Hentz and Owen Lee Harden were indicted for the capital murder of Williamson. The causes were severed, and a change of venue was granted to each Defendant. Pursuant to a change in venue, Owen Lee Harden was tried in the Circuit Court of DeSoto County, Mississippi, in July, 1983, and acquitted. 1
John Tailer Gullett, today's Defendant/Appellant, was called by the defense at the Harden trial to impeach the prosecution's star witness, Roger Lynn Hentz (hereafter "Roger Lynn"). Gullett testified that Roger Lynn had told Gullett that he (Roger Lynn) had killed James Williamson, and further that Owen Lee Harden did not participate in Williamson's murder.
Following Harden's acquittal, the prosecution had Gullett indicted for perjury. Miss.Code Ann. Sec. 97-9-59 (1972), charging that Gullett had lied at the Harden trial. Gullett waived arraignment and pled not guilty on March 21, 1984. His trial began June 25, 1984.
The prosecution's proof consisted of the testimony of Roger Lynn Hentz plus evidence of corroborating circumstances. The prosecution first introduced the Harden indictment followed by the transcript of Gullett's testimony in the Harden trial. Thereafter, the prosecution called Roger Lynn Hentz, who denied ever making any statements to Gullett about the murder of James Williamson. Further, Roger Lynn denied that he and Gullett had ever been friends while incarcerated.
The prosecution then called Panola County Sheriff David Bryan, the former sheriff of DeSoto County, District Attorney Bobby Williams and his wife Vickie to prove that Owen Lee Harden confessed to killing James Williamson. Sheriff Bryan testified that Harden, while incarcerated in the Yalobusha County Jail, confessed to killing Williamson. Bryan then testified that Harden called District Attorney Williams, making the same confession that he made to Bryan. Vickie Williams, the District Attorney's wife, testified, over defense objection, that she overheard Harden's confession to her husband. District Attorney Williams testified that Harden indeed made such a confession over the telephone. Additionally, the prosecution further produced Barry Joe Tutor, who testified that Harden had told him he had killed a man, but did not identify this man.
District Attorney Williams offered further his opinion about the materiality of Gullett's statement at Harden's trial. Williams testified that, in his judgment, Gullett's testimony "allowed a guilty man to walk." The prosecution went further, and asked Williams what was the jury verdict in the Harden trial. Williams responded: "The net result of the jury verdict let a cold-blooded hired killer walk out of this Courthouse a free man." Defense counsel immediately objected, and the Circuit Court sustained the objection, admonishing the jury to disregard Williams' response.
More testimony pertaining to materiality was elicited from Circuit Judge Andrew Baker, the judge who presided over the Harden trial. The prosecution asked Judge Baker if he had an opinion as to whether Gullett's testimony played any part in Harden's acquittal. Over defense counsel's objection, Judge Baker testified that he thought Gullett's testimony was "material to the outcome of the case."
Other evidence was elicited via Joy Hentz, mother of Roger Lynn and Larry Shelton Hentz. First, over timely defense objection, the prosecution introduced letters that Larry Hentz, Roger Lynn's brother, had written to their mother, Joy, following Harden's acquittal. It will be remembered that Larry Hentz was one of those jointly charged with Harden and Cookie Williamson for the murder of James Williamson. The prosecution argued that these letters 2 were evidence that Larry Hentz and John Gullett were friends, and such evidence allegedly indicated a motive for Gullett to commit perjury at Harden's trial.
Second, the prosecution elicited testimony from Joy Hentz that she took money to Larry Hentz while he was in jail, thus attempting to set up the inference that Larry could have bribed Gullett to lie. Specifically, Joy testified over defense counsel's objection that she had taken Larry his federal and state income tax refunds during the spring of 1983 while he was in the DeSoto County jail. The prosecution referred to both these items (letters and money) during closing argument.
At the close of the State's case-in-chief, defense counsel moved for a directed verdict. This motion was denied, and the defense then presented its proof.
Gullett first called David Glenn, who had been incarcerated with Roger Lynn and Gullett in Parchman and Jerry Sinquefield, who had been incarcerated with Roger Lynn and Gullett in the DeSoto County jail. Glenn testified he had seen Gullett and Roger Lynn talk, and they seemed to be friends. Sinquefield testified that Gullett and Roger Lynn knew each other, and he had seen them speak before and play games in their cell.
Gullett then called Lacy Murphree, a family friend of the Hentz', who testified that she had heard Roger Lynn say that he lied at the Harden trial due to pressure placed upon him by District Attorney Williams.
Gullett called Larry Hentz to testify on his behalf. Larry was the brother of Roger Lynn, and was incarcerated at Parchman at the time of this trial. Larry testified, corroborating Lacy Murphree's testimony, that Roger Lynn told him he had lied at Harden's trial because of pressure from District Attorney Williams. Larry refuted his mother's testimony that she had brought him his federal and state income tax refund checks while in jail. Larry also testified that Roger Lynn told him that he had confessed Williamson's murder to Gullett. Larry identified the letters he had written to his mother, previously admitted at trial, and testified that he did not dominate Gullett at all, only that he knew about the fact that Roger Lynn had told Gullett about killing Williamson and that he (Larry) shared this fact with Harden's attorney before trial. Larry testified that Harden's attorney went to Gullett and discussed the matter alone with Gullett. Indeed, Larry testified that Gullett had left the DeSoto County jail where Larry was two months before Harden's trial, therefore there was no way Larry could have dominated him.
The prosecuting attorney conducted an extensive and brutal cross-examination of Larry Hentz. Included in this encounter were many items of testimony challenged by defense counsel on appeal as being unduly prejudicial. Additionally, Larry chose to plead the Fifth Amendment on many instances, and the Circuit Court held him in contempt, subsequently sentencing him to 180 days imprisonment for the contempt charge. See Hentz v. State, 496 So.2d 668 (Miss.1986).
Finally, Defendant Gullett took the stand. He testified that he was incarcerated with Roger Lynn Hentz in the DeSoto County Jail where they became friends. Gullett further testified that Roger Lynn had told him that he had killed James Williamson, as Gullett testified at Harden's trial. Gullett testified that he did not know whether Roger's statement was true, only that Roger had said it.
Thereafter, the prosecution briefly called Joy Hentz and Circuit Clerk Martin in rebuttal. Defense counsel then renewed his motion for a directed verdict, which was denied. The jury returned a verdict of guilty, and Gullett was subsequently sentenced to thirty years imprisonment pursuant to Miss.Code Ann. Sec. 97-9-61 (1972). Following denial of his motions for judgment of acquittal notwithstanding the verdict or for a new trial, Gullett has brought this appeal.
III.
During direct examination of Joy Hentz, Larry Hentz' mother, the prosecution introduced two letters written by Larry to Joy shortly after the trial of Owen Lee Harden. Gullett objected, but the Circuit Court overruled his objection and admitted the letters apparently on the theory that such letters were relevant to prove Gullett's motive and intent to commit perjury. At trial the prosecution made particular reference to several sentences in one of the letters:
And as far as John Gullett, he didn't hurt Roger Lynn he just helped Lee [Owen Lee Harden]. He is a friend of mine and a real good one now, that is what beat the case for Lee. I had him all time but I would not tell anyone about him until I was sure Lee was going to trial. I told them about a week ago about him and he is the one that pulled it out for us....
Indeed, the prosecution referred to this language in closing argument as solid proof of Larry's bribery of Gullett.
Statements other than those made by the declarant while testifying made out of court by another and offered in evidence to prove the truth of the matter asserted constitute inadmissible hearsay. 3 Gates v. State, 484 So.2d 1002, 1007-08 (Miss.1986); Fuselier v. State, 468 So.2d 45, 52 (Miss.1985); Lee v. State, 338 So.2d 395, 397 (Miss.1976); Ellis & Williams Mississippi Evidence Sec....
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