James v. State

• Decision Date: 31 October 2013
• Docket Number: No. 2012–KA–00157–COA.,2012–KA–00157–COA.
• Citation: 124 So.3d 693
• Parties: Rundell JAMES, Jr. a/k/a Rundall James, Jr., Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

124 So.3d 693

Rundell JAMES, Jr. a/k/a Rundall James, Jr., Appellant

v.STATE of Mississippi, Appellee.

No. 2012–KA–00157–COA.

Court of Appeals of Mississippi.

April 30, 2013.

Rehearing Denied Aug. 20, 2013.

Certiorari Denied Oct. 31, 2013.

George T. Holmes, Jackson, Wilbert Levon Johnson, attorneys for appellant.

Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.

EN BANC.

FAIR, J., for the Court:

¶ 1. Rundall James was convicted of murdering his great aunt, Zelphia Ivory, by pouring hot cooking oil on her as she slept. Ivory died before she could give a statement to the authorities. The State built a case against James showing that he had threatened to “burn” Ivory for making his dog sick and that he had been in the house a short time before the attack. However, the State's key witnesses—James's brother and his girlfriend—suggested James had left before the attack and testified that Ivory could not identify her attacker. The prosecution then impeached its own witnesses with unsworn prior statements that James had been identified as the assailant and that he was seen outside the house shortly after the attack.

¶ 2. We find that the impeachment was improper without the required predicate of surprise or unexpected hostility. We also conclude the error was prejudicial enough to deny James a fair trial, and we thereforereverse James's conviction and remand for a new trial.

FACTS

¶ 3. In September 2009, Rundall James and his brother Zacherius James (“Zach”) were living with Ivory, their great aunt, at her home in Mound Bayou. Ivory was ninety-five years of age, and over the years she had allowed many family members to stay in her home.

¶ 4. James allegedly came to believe Ivory had sickened his Rottweiler by feeding it table scraps. The dog ended up at the vet and may or may not have died. James was upset and demanded that Ivory pay for the dog and its veterinary expenses, but she was unable or unwilling to do so. This made James angrier, and multiple witnesses testified that in the weeks before her attack he had alternatively threatened to kill her, burn her house down, or “burn” her if she did not compensate him for the dog. Ivory made a report to the police about James approximately one week before the attack. The day before the attack James apparently waited for Ivory at the Senior Citizen Complex in Cleveland, Mississippi. Ivory appeared to be afraid of James and refused to go with him when he insisted. James repeatedly said: “You know what you're supposed to be doing. You're going with me.” James eventually relented and left.

¶ 5. Sometime after midnight Zach and his girlfriend, Samantha Jackson, returned to Ivory's home. Zach was drunk, but Samantha had had only one drink. Zach had forgotten his key to the house, so he had to knock on Ivory's window for her to let them in. They, along with two of Zach's small children, retired to one of the bedrooms.

¶ 6. Lewon Payne testified that he and James had spent the evening at a high school football game. They went drinking afterwards, and when they got back to the Payne home, James was drunk. James wanted to sleep there, but he apparently was not ready to call it a night, so Crystal James—James's sister and Payne's then-wife—insisted Payne take James home. Payne complied, dropping James off at Ivory's house between 2:00 and 3:00 a.m.

¶ 7. Samantha and Zach testified that sometime after they went to bed, James came into the house. He knocked on the door to their bedroom and asked for a cigarette. Zach awoke but did not respond; Samantha told James they did not have one. James then told Samantha he was going to his cousin's house, and he closed the door. Three to five minutes later, Samantha saw a shadow move past the doorway, and a few minutes after that she smelled grease and heard cracking sounds. Then a shadow came back and forth across the doorway again, and she heard Ivory scream. Both Samantha and Zach got out of bed and rushed to Ivory's bedroom, where they found her covered in grease. According to Samantha, she said, “I'm burning. He came through the window. Dear Lord, why am I burning so bad?” Zach testified Ivory told him someone had tried to come in through the window, but he found all the windows closed and locked. The front door, however, was either cracked open or “wide open,” depending on the testimony. Zach got dressed, retrieved a pistol, and went outside where he saw a man he described as “[n]o one in particular. Tall male, brown skin.” Zach initially “just assumed” the man was James because he appeared to be walking toward the house, but when Zach came out the man veered away. Zach denied the man looked like his brother. At some point, Zach fired a shot, though it is unclear from his testimony whether he was trying to shoot the man or just frighten him away. Zach and Samantha called the authorities and various family members. Diane James (Zach and James's mother) arrived before the ambulance. She testified for the defense that Ivory said she did not know who had burned her.

¶ 8. Ivory suffered second- and third-degree burns to approximately forty percent of her body. She was taken by ambulance to the Bolivar County Medical Center and shortly thereafter flown to a burn center in Augusta, Georgia. She died of sepsis about one week after the attack. Ivory was sedated and intubated during her treatment and was never able to speak to the authorities.

¶ 9. The prosecutor repeatedly questioned Samantha and Zach about prior statements they had made to investigators. The duo denied critical assertions supporting the prosecution's case that were never established with admissible substantive evidence: that they would have heard James leave if he had left the house before the attack, that Ivory had identified James as the assailant, and that James was seen outside the house immediately afterwards. The prosecutor also sought to impeach their testimony on other critical points, including: whether and to what degree James was angry with Ivory over the dog, whether he had threatened her, and how many people had a key to the house. Zach and Samantha denied many of the alleged prior statements.

¶ 10. The State then called Investigator Charles Griffin, who testified to prior statements by both witnesses. The State also introduced and played for the jury a tape recording of Griffin's interview with Zach that confirmed the investigator's account of what Zach had said. Another investigator testified Zach had given him a similar statement about a year after the first interview. The State also called Lewon Payne, James and Zach's former brother-in-law, who testified that Zach had, in a teary confession, told him Ivory identified James as her attacker. Zach also told Payne it was James he had fired upon outside the house. Payne described Zach as wracked with guilt for shooting at his brother and for implicating him to the authorities. Several times during the trial, the judge admonished the jury that it could not consider the impeachment as substantive evidence.

¶ 11. Zach and Samantha either denied making the prior statements or attempted to explain them. When confronted with his prior statement to Investigator Griffin, Zach testified he had not told the truth. He explained that after the attack, he and Samantha were arrested for the crime and booked into the Bolivar County Jail. Zach was told they would not be released until he gave a statement implicating James, who he was told had already confessed. Zach also claimed to have been threatened with prosecution for “buying too many guns” if he did not implicate his brother.

¶ 12. The jury convicted James of murder and he was sentenced to life imprisonment. James appeals from that judgment.

DISCUSSION

¶ 13. James raises several issues on appeal, but we find one dispositive: whether the circuit court erred in permitting the State to impeach its own witnesses without first showing surprise or unexpected hostility. Because this error requires a new trial, we will not address the other issues presented in James's brief.

¶ 14. The leading Mississippi case on this issue is Wilkins v. State, 603 So.2d 309 (Miss.1992). Our supreme court had promulgated the Mississippi Rules of Evidence some years before, in 1985, and in Wilkins the court addressed whether Rule 607 changed the pre-rules practice of allowing a party to impeach its own witness only if it was surprised by his testimony at trial. Rule 607 provides: “The credibility of a witness may be attacked by any party, including the party calling him.” The court considered the conflict between the apparent broadness of Rule 607 and other rules of evidence prohibiting hearsay, as well as the danger of a defendant being convicted based on testimony that was supposed to have been considered only for impeachment. See Wilkins, 603 So.2d at 318–22. The decision was unanimous in result, and eight of the nine justices agreed on an opinion authored by Justice Hawkins.

¶ 15. Our supreme court recognized that most other courts considering their analogues of Rule 607 had not explicitly required surprise or unexpected hostility. See id. at 321. However, in the supreme court's view, they had achieved essentially the same result with a different justification: other courts forbid a party from using a prior inconsistent statement “under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible.” See id.¹ The Wilkins court found this impractical because of its subjectivity, as well as unnecessary: “The trouble with this rationale is first ... it makes admissibility of evidence depend on what is in the attorney's head, a rather difficult undertaking; and second, if there is in fact no surprise, the only possible motive for attempting to impeach one's own witness is to get otherwise inadmissible testimony into evidence.” Id. (citation omitted). The court concluded that a...