Mitchell v. State, 55746
| Citation | 495 So.2d 5 |
| Decision Date | 24 September 1986 |
| Docket Number | No. 55746,55746 |
| Parties | George MITCHELL and Joyce Wells v. STATE of Mississippi. |
| Court | United States State Supreme Court of Mississippi |
Samuel H. Wilkins, Jackson, Mark W. Prewitt, Prewitt & Johnson, Vicksburg, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
I.
In controversy today, in the context of a joint trial of two persons charged with criminal conspiracy, is the admissibility of each co-conspirator's out of court declaration which points the finger at the other. The trial judge overruled defense objections and admitted the statements.
Upon analysis, we have determined that each co-conspirator's hearsay statement, with one exception to be noted below, falls outside the co-conspirator's exemption from the hearsay rule. Moreover, the statements do not interlock in substantial particulars nor are they attended by other indicia of reliability sufficient to satisfy the accused's rights under the confrontation clauses of federal and state constitutions. We reverse and remand for a new trial.
II.
On July 21, 1983, informant Clardy "Bootsie" Ellis contacted Warren County Sheriff Paul Barrett and told Barrett that he (Ellis) had been paid to find and hire a killer. The "job" Ellis was to arrange was the murder of the husband of a woman who owned a certain beauty shop on the frontage road in Vicksburg. The Sheriff's office investigated the matter, witnessed meetings and taped a conversation between the informant and a man, later identified as George Mitchell, one of the Defendants below and one of the Appellants here. According to Ellis, the killing was to take place on the next morning, July 22, 1983, at the beauty shop where the victim would arrive in a green Grand Prix at 7:00 a.m. to turn on the air conditioning before the employees arrived at 8:00 a.m.
The Sheriff and the Chief of Police of the City of Vicksburg hid in the beauty shop early on the morning of July 22. At 7:00 a.m. James Earl Wells, husband of Joyce Wells, the other Defendant/Appellant, arrived at the beauty shop in a blue Grand Prix and entered the beauty shop whereupon the officers informed him of the purported plot to kill him. Wells agreed to cooperate with the plan to capture the conspirators.
When Joyce Wells arrived at 8:00 a.m., she found the shop in disarray and her husband lying on the floor. She screamed, ran for help, and returned to the shop with two men who worked nearby. The Sheriff stepped from his hiding place, dismissed the two men who had come to render assistance, and arrested Mrs. Wells for conspiracy to murder her husband. She was transported to the Warren County Jail, where she gave oral and written statements.
Earlier that morning George Mitchell and his son had been placed under surveillance by members of the Sheriff's department who followed them to Eagle Lake in northwest Warren County. As he was returning to Vicksburg, Mitchell was arrested and he, too, was charged with conspiracy to commit murder.
On September 13, 1983, Mitchell and Wells were formally charged with conspiracy--with each other--to commit murder, Miss.Code Ann. Secs. 97-1-1(a) and -3-19(1) (Supp.1985), in an indictment by the Warren County Grand Jury. Compare James v. State, 481 So.2d 805, 808-10 (Miss.1985). Numerous motions--pre and post-trial--were filed, the rulings on some of which are argued as error. Both Defendants filed motions to suppress as evidence statements made by the other, namely, a conversation had between the informer, Bootsie Ellis, and George Mitchell, a post-arrest oral statement Mitchell made to Sheriff Barrett, and a transcribed, post-arrest statement made by Joyce Wells.
The joint indictment was called for trial on January 25, 1984, whereupon the prosecution called Ellis as its first witness, and he described a conversation he had with George Mitchell in regard to the hiring of a "hit man." At a subsequent meeting between Ellis and Mitchell at the A & P Store on Clay and Mission (streets in Vicksburg), Mitchell told Ellis, "Got to have it done right away." He identified the victim as a man who works at the Waterways Experiment Station and gave Ellis an itinerary of the route he would take on the morning of the supposed killing and stated that he would be driving a green Pontiac. Mitchell gave Ellis $500.00.
Another meeting was had mid-day that same day in a mall. Ellis had been wired with a concealed radio transmitter and the conversation was monitored by Deputy Sheriff John Dolan. Mitchell variously referred to the person who wanted the man killed as a "bitch" or "his old lady." The killing was to be done in the beauty parlor, a key to which Mitchell gave Ellis. Mitchell told Ellis to empty the cash register after killing the victim. The victim was further identified as having a bald spot, would be driving a green Pontiac and would come to the store between the hours of 6:30 and 7:00 a.m. to turn on the air conditioning. The killing was to be done by strangulation and the victim left there so that when the lady arrived at 8:00 a.m., she would find him lying on the floor. Ellis would get another $2,000.00 for the job after it was completed.
The gist of Dolan's recollection of the conversation he monitored between Ellis and Mitchell was:
Q. What was said during this conversation that you overheard?
A. Mr. Mitchell said, 'Do you know where the cash box is that I told you about?' Bootsie said, 'Right.' Mr. Mitchell said, 'Right in back of the counter.' Bootsie said, 'Right.' Mr. Mitchell said, 'You can put the money in the cash box or have the money with you.' Bootsie said, 'Right'. (Will it be okay to say the language that was in here?)
A. Mr. Mitchell said, Bootsie said, 'I understand.' Mr. Mitchell said, Bootsie said, 'Right.' Mr. Mitchell said, Bootsie said, 'Right. Mr. Mitchell said, Bootsie said,
Before the foregoing testimony, counsel for Joyce Wells had interposed an objection based on her right to confrontation, but the objection was overruled. Mitchell never mentioned anybody by name; he referred to the other co-conspirator(s) as the "people", "bitch" or "his old lady".
Sheriff Barrett testified that, using the key Mitchell allegedly gave Ellis, he gained entry into the beauty parlor owned and operated by Defendant Wells at the Executive Plaza in Vicksburg. As described above, Barrett placed Wells under arrest shortly after her arrival that morning. Wells gave a post-arrest statement which was subsequently typed in question and answer form. In this statement, among other things, Wells admitted discussing killing her husband with Mitchell "a couple of weeks ago". In the end, however, she sought to exculpate herself by stating that she never thought Mitchell would go through with the murder.
At the request of Mitchell, the jury was specifically instructed that the statement made by Wells was to be considered only as evidence against her and not Mitchell. In the presence of the sheriff, in response to an inquiry from a friend about why she (Joyce) did this (plan to kill her husband), she replied, "I was in love with a son of a bitch who didn't love me."
When Sheriff Barrett arrested Mitchell at Eagle Lake Road (Hwy. 465), he asked Mitchell how a family man like him (Mitchell) could get himself involved in such a crime, to which Mitchell replied, Mitchell also stated, "Paul, when you found out I was going to do this, why didn't you call me and tell me and I wouldn't be in this predicament." The police chief, A. J. Holliday, corroborated the sheriff's testimony. These statements by Mitchell were related to the jury over Wells' objection.
Each Defendant then moved for a directed verdict and each motion was denied. Thereupon, counsel for Mitchell made an opening statement and then rested. James Earl Wells, the alleged victim of the conspiracy and husband of Joyce Wells, was the only witness called to testify on Wells' behalf. He testified largely to a happy marriage relationship and expressed disbelief about his wife's guilt. The prosecution called two witnesses in rebuttal and the matter went to the jury after instructions from the court. The jury returned a verdict of guilty on each Defendant and each was sentenced to a term of four years to be served with the Mississippi Department of Corrections. Miss.Code Ann. Sec. 97-1-1 (Supp.1985).
III.
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