Newell v. State
| Decision Date | 23 September 2014 |
| Docket Number | No. 2013–KA–00030–COA.,2013–KA–00030–COA. |
| Citation | 176 So.3d 78 |
| Court | Mississippi Court of Appeals |
| Parties | James C. NEWELL, Jr. a/k/a James C. Newell a/k/a James Newell a/k/a Chuck Newell, Appellant v. STATE of Mississippi, Appellee. |
Office of State Public Defender by Hunter Nolan Aikens, attorney for appellant.
Office of the Attorney General by Billy L. Gore, attorney for appellee.
LEE, C.J., for the Court:
¶ 1. This appeal addresses James C. Newell's second trial after the Mississippi Supreme Court in Newell v. State,49 So.3d 66 (Miss.2010)( Newell I), reversed Newell's first manslaughter conviction and remanded the case for a new trial.
FACTS AND PROCEDURAL HISTORY
¶ 2. On April 30, 2008, Newell married his wife, Diane. Within the next two weeks, Newell suspected Diane of cheating on him with Tony Hayes, and had contacted a lawyer about divorcing her. On May 14, 2008, Diane moved out of their home in Vernon, Alabama. Later on that same day, around 5 p.m., Newell telephoned her and left two voice mail messages. In the first message, Newell threatened to “pop a cap” in Diane and Tony; however, in the second message, Newell told Diane that they “were not worth it.” Later that night, Newell went to the Slab House, a bar in Lowndes County, Mississippi, to see if Diane was there with Tony.
¶ 3. When Newell arrived at the Slab House around 9 p.m., he saw Adrian Boyette and Jason Hollis standing near Diane's truck. Newell approached Boyette. Newell testified that he asked Boyette if he knew where the owner of the truck they were standing near was. Several law enforcement officers testified that Newell had told them that he asked Boyette if he was the person who had been answering Diane's phone. The conversation between Boyette and Newell became heated. Newell walked back to his truck, followed by Boyette. As Newell was getting into his truck, Boyette slammed the truck door on Newell's leg. After Newell closed the truck door, Boyette began beating on the hood of the truck, threatening to “[mess him] up.” During this time Newell removed the handgun he carried from the glove box and placed it beside him on the seat. Boyette pulled on the driver-side door. Boyette threatened to “cut [Newell] up” and reached for his pocket. Newell grabbed the gun, pushed the door open, and shot Boyette. Newell jumped back in his truck and drove off to his home in Vernon.
¶ 4. Police soon arrived at the Slab House and put out a “BOLO,” or be on the lookout, for Newell's vehicle. Soon after Newell arrived home, his sister called 911 to report that Newell was outside his house threatening to commit suicide with a gun. Police officers soon responded to the call. Investigator David Sullivan arrived to find Newell outside with a gun to his head, surrounded by other officers. Since Sullivan knew Newell personally, he sat on a bench next to Newell, talked with him, and convinced him to place the gun in his lap. During the conversation, Newell asked the police to check his truck for Boyette's fingerprints and to obtain Diane's cell phone to show that she had been talking to other men. After Sullivan ordered the truck fingerprinted and the phone seized, he was able to convince Newell to give him the gun and surrender peacefully. At trial, Newell testified that he was threatening to kill himself because he did not think anyone would believe that he shot Boyette in self-defense.
¶ 5. After a three-day trial ending on August 24, 2012, the jury found Newell guilty. On September 7, 2012, Newell was sentenced to twenty years in the custody of the Mississippi Department of Corrections, with five years suspended and fifteen years to serve. Also, the court required Newell to serve five years of post-release supervision and to pay a $10,000 fine. Newell now appeals.
DISCUSSION
¶ 6. Newell is represented by the Indigent Appeals Division of the Office of the State Public Defender. On appeal, Newell's counsel raised the following six issues: (1) the verdict was not supported by the weight and/or sufficiency of the evidence; (2) the trial court erred in giving several jury instructions; (3) the trial court erred in allowing Dr. Stephen Hayne to testify that Boyette was in a “guarded position” at the time of the shooting; (4) the trial court erred in allowing evidence of Newell's telephone messages from Diane's phone; (5) the trial court erred in allowing the State to read Hollis's testimony; and (6) the trial court erred in denying Newell's motion to dismiss for a violation of his constitutional right to a speedy trial. Additionally, Newell filed a pro se brief, asserting that his constitutional rights provided by the Fifth Amendment and the Due Process Clause were violated. We find that the trial court erred in allowing Dr. Hayne to testify to the position of Boyette's body at the time of the shooting; therefore, we reverse and remand for a new trial.
¶ 7. Newell contends that the court erred in allowing Dr. Hayne to testify that the bullet wound
was consistent with Boyette being in a guarded position.
¶ 8. “[T]he admission of expert testimony is within the sound discretion of the trial judge.” Miss. Transp. Comm'n v. McLemore,863 So.2d 31, 34 (¶ 4) (Miss.2003)(citing Puckett v. State,737 So.2d 322, 342 (¶ 57) (Miss.1999)). The trial judge's discretion must comply with the Mississippi Rules of Evidence. Ross v. State,954 So.2d 968, 996 (¶ 56) (Miss.2007). Id.(internal citations omitted).
(Internal citations and quotations omitted).
¶ 10. At trial, the State questioned Dr. Hayne, asking:
, do you have an opinion with respect to that, sir?
Newell's counsel objected to the testimony lacking foundation and being speculative. The court overruled the objection, noting that the defense could bring it out on cross-examination.
¶ 11. Dr. Hayne then continued:
?
A: The left upper extremity could not be covering the entrance gunshot wound
. It could be raised, it could be behind, it could be markedly forward.
¶ 12. Prior to testifying about Boyette's position at the time of the shooting, Dr. Hayne offered no facts or evidence to support his contention that Boyette's singular gunshot wound
was consistent with being in a guarded position. The State argues that Hollis testified that he saw Boyette step back with his hands in the air. However, on cross-examination, Hollis stated that the did not see Boyette prior to the shooting; he only looked after he heard the gunshot.
¶ 13. As the supreme court warned against in Parvin,113 So.3d at 1247 (¶ 14), Dr. Hayne testified to a “mere possibility.” Dr. Hayne even noted that there were other possibilities as well, stating that Boyette's arm could have been “raised, ... behind, ... or markedly forward.” Dr. Hayne's testimony regarding Boyette's “guarded position” does not rise above mere speculation, to meet the requirements of Rule 702. Because a substantial right of Newell's was affected, we reverse the conviction and remand the case for a new trial consistent with this opinion. We decline to address the merits of the other issues raised.
¶ 14. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.
¶ 15. I would affirm the conviction and find no abuse of discretion by the trial court's admission of the expert opinion testimony of Dr. Hayne in this case. The record reflects that the trial court accepted Dr. Hayne as an expert in the field of forensic pathology without objection and that evidence in the record shows Dr. Hayne rendered expert opinion testimony with a sufficiently reliable and relevant basis falling within the scope of his field of expertise.1Dr. Hayne's testimony reflects he relied upon the facts, data, measurements, and findings of his autopsy, internal and external examination, photographs, autopsy body-illustration diagram, and the crime scene to render his expert opinion that the wounds
of the victim, Boyette, were consistent with the victim putting himself in a guarded position at the time of the shooting: his hands were raised or sufficiently forward with his chest area exposed where the bullet entered his body.2
¶ 16. Moreover, a review of Dr. Hayne's testimony in context in the record shows no...
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Newell v. State
...to kill himself because he did not think anyone would believe that he shot Boyette in self-defense.Newell v. State, 176 So.3d 78, 78–80, 2014 WL 4695871, at **1–2, (Miss.Ct.App.2014). Newell was indicted for deliberate-design murder, but the jury at his first trial found him guilty of mansl......
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