Hayden v. State, 2006-KA-00854-SCT.

• Decision Date: 15 November 2007
• Docket Number: No. 2006-KA-00854-SCT.,2006-KA-00854-SCT.
• Citation: 972 So.2d 525
• Parties: Alphonso HAYDEN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

972 So.2d 525

Alphonso HAYDEN v. STATE of Mississippi.

No. 2006-KA-00854-SCT.

Supreme Court of Mississippi.

November 15, 2007.

Rehearing Denied January 31, 2008.

Michael R. Farrow, Columbus, Phillip Broadhead, Oxford, attorneys for appellant.

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

EN BANC.

DICKINSON, Justice, for the Court.

¶ 1. Alphonso Hayden was indicted by the Lowndes County Grand Jury for unlawful possession of a stolen vehicle. At trial, the State called Hayden's former attorney to testify that two documents produced to the State in discovery (a certificate of title and a bill of sale) were provided by Hayden to his attorney. This testimony allowed the State to argue that, because Hayden had actual possession of the documents (which had different vehicle identification numbers), he knew, or should have known, the vehicle had been stolen.

¶ 2. Hayden was convicted and sentenced as a habitual offender to serve ten years imprisonment, without parole. The questions presented are: (1) whether the attorney-client privilege was breached when the former attorney testified he received the two documents from his client; and (2) whether — by removing the former attorney from the case so he could testify — the trial judge violated Hayden's right to counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article 3, Section 26 of the Mississippi Constitution.

BACKGROUND FACTS AND PROCEEDINGS

¶ 3. On May 28, 2003, a 2003 white GMC Yukon Denali, bearing vehicle identification number ("VIN") 1GKEK63U73J140390 was stolen from the parking lot of Royal Automotive Company in Atlanta, Georgia.¹ Five days later, a man identifying himself as Curtis Powell entered the Madison County Tax Collector's office in Ridgeland, Mississippi, and submitted a title application for a white 2003 Yukon Denali, with VIN 1GKEK63U73J140390. The application represented that the Yukon had no lien-holders, and that Powell had purchased it from Herrin-Gear Chevrolet in Jackson, Mississippi.² Deputy Tax Collector Lisa Duvall issued Powell a Madison County vehicle tag bearing the number 838 MBE for the white Yukon.

¶ 4. In early June 2003, Jerome Miller, a 31-year resident of Columbus, but more recently a resident of Shuqualak in Noxubee County, had a chance meeting with Hayden, whom Miller had known for many years. Miller's wife was about to retire from the local school system and Miller was interested in purchasing her a vehicle as a retirement gift. Miller noticed Hayden's white Yukon, and engaged him in a discussion about the vehicle.

¶ 5. On Saturday, June 21, 2003, city policeman Andrew Cotton, who was on routine patrol on North 18th Street near Sims Scott Park in Columbus, noticed a white GMC Denali "weaving" and being driven in "a careless manner." By checking tag number 838 MBE, Officer Cotton learned that the vehicle was registered to Curtis Powell of Ridgeland. Officer Cotton issued the driver, Hayden, a Uniform Traffic Ticket for careless driving.

¶ 6. On July 7, 2003, two men entered the Lowndes County Tax Collector's office together, and one of the men presented Deputy Tax Collector Pamela Lang a document purporting to be a copy of a title application for a white 2003 GMC Denali. The application, which listed no lienholder, represented that Marvin Harris³ had purchased the vehicle from Herrin-Gear Chevrolet in Jackson. Although at that time, Lang did not know the identities of the two men, she would later identify Hayden as the man who presented her with the title application.⁴ Lang issued Hayden a Lowndes County tag bearing number 677 LNX, for the white 2003 GMC Denali.

¶ 7. Later, Miller had another chance meeting with Hayden at a muffler shop on Highway 82 in Columbus. Hayden was a passenger in a red GMC Denali being driven by a man who was unknown to Miller. Recalling that Miller was interested in purchasing a vehicle for his wife, Hayden mentioned that he had purchased the white Denali (which Miller had seen before) from the man with him. Hayden stated that this man would be willing to sell Miller the red Denali. Miller checked out the red Denali by running a CARFAX, which revealed no negative information, and that the red Denali had been purchased in Baltimore, Maryland. Based on this information, and because Hayden in essence "vouched" for the unknown man who was supposedly from Prentiss, Mississippi, Miller and the man reached an agreement on the terms of purchase for the red Denali.

¶ 8. Miller borrowed some "up-front money" from a local bank so that he could take immediate possession of the vehicle. The seller "signed his title over to Miller" so that Miller could get a vehicle tag.⁵ According to the agreement, Miller was to pay the balance of the purchase price when he obtained a title in his name and a tag for the vehicle.

¶ 9. On July 15, 2003, Miller's wife went to the Noxubee County Tax Collector's office to purchase the vehicle tag. However, because the VIN on the title did not match the VIN on the red Denali, Mrs. Miller was unable to obtain the tag. When Miller came home that day from fishing, Trooper Randy Ginn of the Mississippi Highway Patrol was waiting to discuss this case with him. Miller learned from Trooper Ginn that the red Denali he had purchased from the unknown man had been stolen.

¶ 10. Trooper Ginn was trained in automobile theft detection and identification, including the method for inspecting a VIN plate to determine if it was fake. According to Trooper Ginn, two areas of inspection for fake VIN plates are the rivets used to attach the VIN plate to the dashboard and the font and style of the numbers and letters on the VIN plate. When Trooper Ginn arrived at the Millers's residence on July 15, he looked at the VIN plate on the red Denali and immediately determined that the VIN plate was fake. When he interviewed the Millers that day, he also reviewed the certificate of title which listed Robert Watson⁶ as the owner of the red Denali. Trooper Ginn learned from Miller that Hayden had been present during the transaction concerning the red Denali.

¶ 11. The following month, upon learning that Hayden could be found at East Mississippi Community College, Golden Triangle Campus, in Mayhew, Trooper Ginn made plans with other law enforcement officials to travel to the EMCC campus to talk with Hayden about the ongoing investigation concerning the Millers red Denali. Trooper Ginn learned from Miller that Hayden was driving a white 2003 GMC Denali; therefore, when Ginn arrived at the EMCC campus on August 18, 2003, he first looked for the white Denali.

¶ 12. Once the vehicle was located in the parking lot, Ginn looked at the VIN plate and concluded from his training that the VIN plate on Hayden's vehicle was fake. As Trooper Ginn would later testify at trial, "[t]he rivets that attached [the VIN plate] to the — the dashboard were not of — consistent with General Motors rivets, and the font and distinguishing characteristics of the letters and numbers in the VIN were not characteristic with General Motors VINs." The displayed VIN was 1GKEK63UX3J238295, the same VIN on the title application Hayden presented to deputy tax collector Pamela Lang to purchase a Lowndes County vehicle tag for the white 2003 GMC Denali.

¶ 13. Ginn went to the proper school administrator to receive permission to have Hayden removed from class. Instead of talking about the Millers red Denali, Trooper Ginn was by then interested in questioning Hayden about his white Denali. In due course, Ginn was able to determine that the white GMC Denali in Hayden's possession had been stolen from the Royal car dealership in Atlanta.⁷ Upon learning that "Marvin Harris" had been listed as the owner on the title application which Hayden presented to Pamela Lang at the Lowndes County Tax Collector's office to purchase a Lowndes County tag for the white Denali, Ginn attempted to locate Harris, to no avail.

¶ 14. In due course, the Lowndes County Grand Jury indicted Hayden for the crime of possession of stolen property. The indictment alleged, inter alia, that Hayden

on or about the 18th day of August, 2003, in the County aforesaid, did unlawfully, willfully, and feloniously, possess one 2003 GMC Yukon Denali, bearing vehicle identification number 1GKEK63U73J140390; said property having a total value in excess of $500.00, and having been feloniously stolen away from the said Royal Oldsmobile Co., Inc., and further that the said ALPHONSO HAYDEN knew or should have known that said property had been so stolen, in violation of MCA § 97-17-70; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Mississippi.

¶ 15. The trial court allowed two amendments to the indictment. The first allowed the above language⁸ to be stricken, and the second allowed Hayden to be charged as a habitual offender under Mississippi Code Annotated Section 99-19-81 (Rev.2007). The habitual-offender amendment alleged that Hayden had two prior felony convictions in which he received sentences of one year or more in a state or federal penitentiary.

¶ 16. At trial, Hayden was represented by attorney Gary Street Goodwin of Columbus.⁹ On the first morning of trial, during a break in the voir dire, Hayden gave Goodwin two documents to be produced to the State. One of the documents purported to be a bill of sale, and the other purported to be a certificate of title. Both documents related to a white 2003 GMC Yukon Denali vehicle.

¶ 17. Consistent with the rules of discovery as codified in URCCC 9.04, Goodwin promptly tendered the documents to the State. Out of the presence of the jury, the trial judge discussed the documents with counsel. During the discussion, the trial judge noticed that the VIN on the bill of sale (1GKEK63U73J140390), did not correspond with the VIN on the certificate of title (1GKEK63UX3J238295).

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