Newell v. State

• Citation: 49 So.3d 66
• Decision Date: 02 December 2010
• Docket Number: No. 2009-KA-00701-SCT.,2009-KA-00701-SCT.
• Parties: James C. NEWELL, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

49 So.3d 66

James C. NEWELL, Jr.

v.STATE of Mississippi.

No. 2009-KA-00701-SCT.

Supreme Court of Mississippi.

Dec. 2, 2010.

Office of Indigent Appeals by Leslie S. Lee, Jackson, Phillip Broadhead, Oxford, attorneys for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, Lisa L. Blount, attorneys for appellee.

Before WALLER, C.J., LAMAR and PIERCE, JJ.

WALLER, Chief Justice, for the Court:

¶ 1. James C. Newell appeals his conviction for manslaughter stemming from his altercation with and fatal shooting of Adrian Boyette in the parking lot of the Slab House bar in Lowndes County. We find that the trial court committed reversible error in one of its evidentiary rulings and in refusing one of Newell's requested jury instructions on the newly revised statutory presumption under the "Castle Doctrine." So we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. James C. Newell lived in Vernon, Alabama, but worked in and around Columbus, Lowndes County, Mississippi. Newell married his wife Diane on April 30, 2008, despite a previously tumultuous relationship. During their two-week marriage, Newell suspected Diane of cheating on him with Tony Hayes, with whom she previously had lived. In fact, Newell already had consulted an attorney about getting a divorce from Diane because of her suspected infidelity. On May 14, 2008, at around 5:00 p.m., Newell called Diane's cell phone and left two voicemail messages. In the first message, he threatened to shoot Diane and Tony, but in the second message he recanted. Nonetheless, later that evening, Newell drove from Vernon, Alabama, over the state line to the Slab House bar on Caledonia-Vernon Road in Lowndes County, Mississippi. He stated that he went there to confirm Diane's and Tony's relationship before he went through with the divorce.

¶ 3. When Newell arrived at the Slab House sometime between 8 and 9 p.m., he saw Diane's truck in the parking lot, but Diane was not there.¹ Newell saw Adrian Boyette, whom he did not know, standing near Diane's truck. And he saw Boyette's friend, Jason Colby Hollis, standing nearby. Newell asked Boyette if he knew the woman who drove Diane's truck, if he knew where she was, and if he had seen a man with her.² Boyette said he did not, so Newell pointed toward Hollis and asked who he was. Boyette responded that Hollis was his friend and told Newell not to go over there and mess with him. Some harsh words were exchanged between Newell and Boyette, and Newell turned around and walked back toward his own truck.

¶ 4. Boyette followed Newell back to his truck. According to Newell, as he was entering the truck, Boyette began shouting and beating on the truck. Newell testified that Boyette stated that he was going to "[mess] [Newell] up!" At some point, Boyette shut the truck door on Newell's leg. Newell said he never pushed, shoved, or struck Boyette in response to his aggression. According to Newell, after the truck door was completely closed, Boyette continued beating on the truck and yelling "I'm fixing to get you-[mess] up your world. I'm fixing to-get [yourself] out of that truck." At this point, Newell began backing up the truck. But Newell testifiedthat he continued to fear for his life ³ because:

[Boyette] come around there, come around and grabbed on the door, like opening the door, like he was either-from the look in his eyes, he was either going to-you know, he was going to try to open that door, just stand there beat-hitting on me when I was sitting in the door, or he was trying to snatch me out of the truck.

Then, Newell pushed on the door from the inside, and Boyette backed up just enough for Newell to step out of the truck. Next, according to Newell, "[Boyette] said 'I'm fixing to cut you up,' " and "when he grabbed at his pocket, that's when [Newell] reached under the ... seat of the truck, pulled the pistol out, and shot him." ⁴ Newell then jumped back into his truck and fled to his home in Vernon, Alabama. Although Boyette never displayed a knife or any other weapon, a pocket knife later was found in his pocket. Boyette died from the gunshot.

¶ 5. Larry Swearingen, who worked as the "town cop" with the Caledonia Marshall's Department, was the first on the scene at the Slab House. He issued a "be on the lookout" ("BOLO") advisory for Newell's vehicle, heading toward Vernon, Alabama, on Highway 12. Later, law enforcement officers in Alabama responded to a call that the man identified in the BOLO was at his home in Vernon and was threatening to commit suicide. Officers James Carl Smith and Jeff Patrick of the Vernon Police Department, as well as Deputy Rodney Jones of the Lamar County (Alabama) Sheriff's Department responded to Newell's residence around 9:30 p.m., followed shortly thereafter by David Sullivan, an investigator with the district attorney's office in Alabama, who knew Newell personally.

¶ 6. When Sullivan arrived at Newell's residence, he encountered a standoff between Newell and the other officers. Newell was kneeling by a tree, holding a gun to his own head, and telling the officers to stay back. When officers asked Newell to drop his gun, Newell stated: "Why? You're going to have to kill me, I'm not going to jail." To try to get him to relinquish the gun and surrender, Sullivan moved closer and had a conversation with Newell, with the other officers listening. Sullivan testified that he asked Newell what had happened,⁵ and Newell related his version of the events surrounding the shooting at the Slab House.⁶ Newell told Sullivan "They won't believe me. Theywon't believe my side of the story." ⁷ Newell said that he was going to commit suicide because he was determined not to go to jail.

¶ 7. In an effort to defuse the situation, Sullivan agreed to some of Newell's "demands." Specifically, Newell wanted Diane's cell phone "seized" to prove her infidelity by showing all of her calls to Tony Hayes and other purported paramours. He also wanted his truck fingerprinted to show Boyette's contact with it. The Alabama officers notified the officers back at the Slab House, who got Diane's cell phone, which still contained the voicemail messages Newell had left earlier that day. But due to moisture present on Newell's truck window, no fingerprints were recovered. After a tense, one-hour standoff, Newell surrendered and was taken into custody by the Lamar County Sheriff's Department.

¶ 8. Although Newell was indicted and tried for deliberate-design murder, the jury found Newell guilty of the lesser-included offense of manslaughter. The trial court sentenced Newell to serve twenty years in the custody of the Mississippi Department of Corrections, and to pay all court costs and funeral expenses. Newell filed an unsuccessful motion for judgment notwithstanding the verdict (JNOV), or, in the alternative, for a new trial. Newell timely filed his notice of appeal, in which he raises the following four issues.

I. Whether the trial court erred in allowing the Appellant's personal telephonic voicemail messages, left for and meant to be heard only by his wife, into evidence over a [Mississippi Rule of Evidence] 504 spousal privilege objection since she was neither a victim of any crime nor an adverse party to these proceedings.

II. Whether the trial court erred in refusing to allow defense counsel to cross-examine expert witness Dr. Stephen [sic] Hayne regarding the findings of the toxicology report after performing the decedent's autopsy, especially in light of the theory of self-defense advanced in the case.

III. Whether the trial court erred in ignoring the evidence that supported a theory of self-defense and refusing to grant a separate jury instruction defining the elements of necessary self-defense and the statutory protections of the "Castle Doctrine."

IV. Whether the trial court erred when it denied the Appellant's motion for a directed verdict for legal insufficiency in the prosecution's case or, alternatively, to grant the Appellant's motion for a new trial (JNOV) where the verdict was against the overwhelming weight of the evidence.

We address only Issues I through III. See Miss. R.App. P. 17(h).

DISCUSSION AND ANALYSIS OF LAW

I. Refusal to exclude voicemail messages

¶ 9. Newell argues first that it was error to admit into evidence the two voicemail messages he had left on Diane's phone, a recording of which was played for the jury during Sullivan's testimony. In the first message, Newell stated:

You're probably up at the Slab [House], ... or over at Tony's, but I bet you're at the Slab, and you want me to come upthere so Mike will whip [me]. But I tell you what I'm going to do: I'm fixing to come up there and pop a cap in [you] and hi[m], too.

In the second message, Newell stated, essentially, "never mind, neither one of you are worth it." "The standard of review regarding admission or exclusion of evidence is abuse of discretion. We will not reverse the trial court's evidentiary ruling unless the error adversely affects a substantial right of a party." Mingo v. State, 944 So.2d 18, 28 (Miss.2006) (citing Parks v. State, 884 So.2d 738, 742 (Miss.2004)). See also Miss. R. Evid. 103(a).

¶ 10. Newell asserts that the voicemail messages are subject to spousal privilege under Mississippi Rule of Evidence 504(b) and that Diane was not competent to aid investigators under the spousal competency standards in Rule 601(a). See Miss. R. Evid. 504(b), 601(a). The State contends that the threats in the messages were relevant to show Newell's deliberate design to shoot "somebody" that day, which he ultimately did, and that such threats presented a controversy between the spouses, an exception to spousal incompetency. We find that the messages were relevant and were not excluded by Rules 504 and 601.

¶ 11. The husband-wife privilege protects confidential communications between spouses. Miss. R. Evid. 504. A "confidential" communication is made in private and is not intended for disclosure. Miss. R. Evid. 504(a). Before a privileged...