Moffett v. State

• Decision Date: 22 August 1984
• Docket Number: No. 55052,55052
• Citation: 456 So.2d 714
• Parties: James Vincent MOFFETT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 714

456 So.2d 714

James Vincent MOFFETT v. STATE of Mississippi.

No. 55052.

Supreme Court of Mississippi.

Aug. 22, 1984.

J.W. Miller, Biloxi, David Seth Michaels, New York City, for appellant.

Edwin Lloyd Pittman, Atty. Gen., William S. Boyd and Marvin L. White, Jr., Sp. Asst. Attys. Gen., Jackson, for appellee.

En Banc.

ROBERTSON, Justice, for the Court:

I.

On the evening of December 27, 1980, a white, female, self-service gas station attendant was robbed, shot and killed while on the job in Gulfport, Mississippi. Two days later James Vincent Moffett was arrested on an unrelated charges, but in due course thereafter was indicted on the charge of capital murder arising out of this incident. Trial saw a Harrison County jury on July 15, 1981 find Moffett guilty of capital murder and sentence him to death. Moffett appeals his conviction and sentence.

The primary questions before us today arise out of the manner in which the trial judge allowed the State to handle its witness, Garland Mose Johnson, at trial. First, the trial judge erroneously allowed the state to cross-examine its own witness and subsequently to impeach him with an inconsistent, prior, unsworn, out-of-court statement. Second, the trial judge erroneously allowed the state to have the statement admitted as evidence, whereupon the prosecuting attorneys proceeded to argue to the jury that it should be used to find guilt. We reverse.

II.

On the evening of December 27, 1980, Helen Allen was working her job at the Coastal Energy Station in Gulfport. This establishment is self-service gas station comprised of gasoline pumps and a small booth for the cashier. Helen Allen was the cashier in the booth.

The evidence reflects that at approximately 10:00 p.m. that evening, someone came up to the booth where Helen Allen was working, fired one gunshot through the plexi-glass wall of the booth into the head of Helen Allen and thereby killed her.

Shortly thereafter, Barbara Tenneson, who lived in an apartment complex nearby came to the service station to buy a pack of cigarettes. She could not see the attendant. Along with an unidentified man who was waiting to buy gasoline, Mrs. Tenneson waited for the attendant to appear. In a little while, the would-be gas purchaser gave up and left. About the same time, Mrs. Tenneson's husband came to the service station and both of them looked around. When they could not find the attendant, Mr. Tenneson thought something must be wrong and the police were called. After about thirty minutes from when Mrs. Tenneson first came to the gasoline station, she and her husband discovered Helen Allen's body on the floor in the cashier's booth. Mrs. Tenneson testified that the cash register was wide open with no money in it.

Police officer Charles Rogers testified that he was not sure if the cash register had any money in it but that there was money on the counter--how much he did not know. Detective Ernest R. Cook of the Gulfport Police Department testified there were several stacks of currency on the counter and that the drawer of the cash register had money in it. There was no usable fingerprint evidence at the crime scene. There were no ballistics reports admitted as evidence in this case.

III.

The most damaging evidence adduced against Moffett at his trial came through the witness Garland Mose Johnson, said to be Moffett's half-brother. Without the introduction into evidence of the transcription of an interview with Johnson had by law enforcement authorities on March 2, 1981, the case against Moffett would have been weak to say the least. Hence the dispositive issues on this appeal surround the Johnson testimony.

Johnson was arrested on December 29, 1980, several hours before Moffett's arrest. Johnson's arrest was on charges unrelated to the capital murder with which we are here concerned. Johnson remained in custody in Harrison County continuously from December 29, 1980 until Moffett's trial in July of 1981.

On March 2, 1981 Johnson was interviewed by Detective Cook. Sitting in as a witness was Detective Parham Bridges. The interview was video taped.

The substance of the interview was Johnson's statement to the effect that at about 10:00 or 10:30 on the evening of December 27, 1980, he and Moffett drove to and parked in the area of an apartment complex known as Medallion Apartments. Moffett was driving the car. Johnson says Moffett left, although he (Johnson) did not know where Moffett was going. Johnson slid over into the driver's seat and turned the radio on low. Minutes later Johnson says he heard a gunshot. "All of a sudden I see him [Moffett] come running back to the car. So he jumps in and says ... let's go to north Gulfport."

Because the Medallion Apartments are located only a stone's throw from the self-service gas station and because Johnson's statement refers to the incident as having occurred shortly after ten o'clock on the evening of December 27, 1980, this statement substantially implicates Moffett in the robbery and murder. The State assumed that it had a reliable witness who would place Moffett at the scene of the crime at or about the time of the crime.

On June 30, 1981, Moffett's attorneys interviewed Johnson. At that time Johnson said that he knew nothing about the robbery or murder, that on the evening in question he had been with Moffett, and that neither he nor Moffett went any where near the Medallion Apartments or the self-service gas station. Johnson told Moffett's attorneys that he had given the police the statement of March 2, 1981, but that what he had said at that time was untrue.

On Friday, July 10, 1981, the attorneys for Moffett again interviewed Johnson. At this time Johnson was still in custody and had several charges pending against him unrelated to the capital murder with which we are here concerned. The record also reflects that there was at the time pending against Johnson a charge of accessory after the fact to the capital murder of Helen Allen. At that time Johnson was represented by counsel, and the interview was conducted with the advice and consent of Johnson's counsel. The interview was tape recorded although not video taped.

In this July 10, 1981 interview, Johnson insisted again that he knew nothing of the December 27, 1980, shooting and corroborated Moffett's alibi as he had indicated he would do earlier. He again explained that he gave the March 2, 1981 statement without the advice of counsel and because he was scared. He says he was afraid he was going to be charged with the Allen murder and this is the reason he decided to point the finger at his half-brother, James Vincent Moffett.

The capital murder trial of James Vincent Moffett was scheduled to begin in Circuit Court in Gulfport on the morning of July 13, 1981. At approximately 9:00 that morning, defense attorneys advised the district attorney what Johnson's testimony would be. In anticipation of the State's calling Johnson as a part of the it's case in chief, the defense requested of the trial judge a preliminary ruling that the State be precluded from pleading surprise and, more specifically, that the State be precluded from treating Johnson as an adverse witness and thus subjecting him to leading questions on cross-examination. The trial judge held that the matter was premature until such time as Johnson actually took the stand.

The next day, July 14, 1981, Garland Mose Johnson was called by the State as its first witness following the noon lunch recess. The defense again sought a preliminary ruling regarding the manner in which these prosecuting attorneys could examine Johnson, and again the trial judge held that the matter was premature.

On direct examination, Johnson then testified under oath that on the evening of December 27, 1980 he was at the apartment of Kimberly Butler, that he received a call from Moffett at about 10:30 or so, that Moffett asked Johnson to come pick him up, that Johnson borrowed a car from a next-door neighbor and drove to Sally's Bar in north Gulfport to pick up Moffett, that Moffett made a phone call to his girl friend and later wife, and that Johnson then took Moffett home.

Once it became apparent that this was what--and all--Johnson was going to say happened on the evening of December 27, 1980, the prosecuting attorney began inquiring about the video-taped interview of March 2, 1981. Johnson admitted that he had made the March 2, 1981 statement, admitted that what he said at the time was quite different from his in-court, under-oath testimony of July 14, 1981, and stated unequivocally that everything he had said on March 2, 1981 to law enforcement authorities was untrue.

At this point the prosecution pleaded surprise and sought the right to cross-examine Johnson. The defense objected, insisting that the State had called Johnson as its witness, that the State therefore vouched for his credibility, was precluded from asking him leading questions on cross-examination, and certainly could not impeach him. Defense counsel further insisted that the State was not in fact surprised, that the State knew as early as 9:00 on the preceding morning what Johnson's testimony would be, and that the State put Johnson on the witness stand knowing full well how he would testify.

An extensive in camera hearing followed, during the course of which the trial judge viewed in its entirety the video tape of the March 2, 1981 interview and listened to the audio tape of the July 10, 1981 interview. The trial judge ruled that the State was surprised and would be allowed to cross-examine and impeach the witness.

The prosecuting attorney then commenced a searing cross-examination of Johnson regarding the March 2, 1981 statement. Again, Johnson admitted that he made the statement, insisted that its contents were untrue, and reiterated that he made the statement because he was afraid that he would be charged with the murder. At no time did Johnson either deny having made the March 2,...