PITTMAN, Justice, for the Court:
On January 25, 1988, Stephanie Lynn Alexander, a young college co-ed from Hernando,
In the early morning hours of October 8, 1985, the body of eighteen-year-old freshman Stacey Dianne Pannell was found in her dormitory room at Northeast Mississippi Junior College in Booneville, Mississippi. Pannell's body was discovered by her roommate, Amy Wheeler. Wheeler arrived at her dormitory room and discovered that the door was locked and that Pannell did not answer her knocks. Since she didn't have her key with her, Wheeler knocked on the door of the next room where Alexander lived. Alexander sleepily answered Wheeler's knocks and let her into the room so that Wheeler could pass through the adjoining bathroom of the two rooms and get into her own dormitory room. Upon entering her own dormitory room, Wheeler saw Pannell's partially nude body on a bed. Wheeler approached the bed with Alexander a few inches behind her. Even in the dim light, Wheeler saw blood on the pillow and Pannell's panties pulled down around the knees of both legs. Upset, Wheeler ran out of the room through her own door and into the hallway in order to get help.
Another resident of the dormitory, Belinda Posey, went to check on Pannell at Wheeler's request. Posey found Pannell's door locked again and had to enter through Alexander's room. After seeing Pannell's body, Posey left to find the "dorm mother".
When the "dorm mother", Edna Snyder, went to check on Pannell, she found Pannell's door locked and got a security guard to unlock it for her. Snyder found Pannel's body with the panties around the calf of only one leg.
Investigators documented the scene. Pannell was lying with her back on the bed. She had her left leg resting on the bed and right foot resting on the floor. She was partially covered with bed linens and was nude from the waist down. A pair of panties was pulled down around her lower left leg. A pillow had been placed over her head. Pannell had severe injuries to the left side of her head and there was a great amount of blood on her head and on the pillow next to her head. There were blood splatters throughout the room on the walls and ceiling and as far away as nine (9) feet from the body of Pannell. A drill rifle was lying on the floor with a towel wrapped around the barrel end. There was blood on the stock or handle of the drill rifle. A hole, 8-10 inches long and 8-10 inches wide, had been cut out of the window screen.
Rhoads questioned those around the crime scene. On September 18, 1986, Rhoads questioned Stephanie Lynn Alexander, a suitemate of Pannell. She confessed.
Alexander signed three statements confessing to the killing of Pannell. She signed one statement on September 18, 1986. She signed another statement on September 19 while in the Union County Sheriff's Office in New Albany, Mississippi, giving additional information. While being kept in the Lee County Jail on September 21, she signed a third statement similar to the first two.
On September 21, while in jail, Alexander wrote an eleven-page letter to Randy Price, a boy she had been dating for about a week, in which she confessed to the crime and described the circumstances surrounding the killing. Alexander told Price that she "didn't mean to do it... . It was an accident." She explained to Price that she had been heavily sedated and had had a mental block about the killing. She wrote that she hadn't been able to remember killing Pannell before but had had nightmares about the killing. Alexander told Price that she hadn't known what she was doing at the time.
The gravamen of Alexander's confession is that she was doing homework on October 7, 1985, in her room and took three (3) codeine tablets sometime between 9:00 p.m. and 10:30 p.m. because of pain from an ovary infection. Alexander had been out earlier in the evening playing cards and visiting friends, including Tommy Osborne. She walked back to her dorm room alone to do homework. Alexander dozed off after taking the codeine. She woke up around 12:30 a.m. when she heard Pannell and some other girls returning home, which was the adjacent room. The girls were helping Pannell get to her room because she had been drinking. She heard Pannell say, "Tommy O. is so fine I could ____ his brains out." Alexander asked them to be quiet, and the girls helping Pannell left. Alexander couldn't go back to sleep so she went back to Pannell's room to talk. Alexander asked Pannell if she had fun that night. Pannell said she did. They talked about Tommy Osborne whom Pannell had been dating. They talked about a boy Alexander had been dating. They talked about Tommy Osborne again. Pannell asked Alexander what she thought about Tommy Osborne. Alexander said she thought he was "fine." Pannell told Alexander, "You had better stay the hell away from him. I'm tired of you and your ____ing room." Pannell was standing in front of the mirror and pointed her finger in Alexander's face. Alexander mentioned Tommy Osborne again. Pannell slapped Alexander. Alexander called Pannell a "bitch" and slapped her. Pannell told Alexander, "I'd better not see you hanging around him. I'll kill you. Do you hear me?" Pannell slapped Alexander again. Pannell put her hands around Alexander's throat. Alexander kicked her to get her away. Pannell fell onto the bed and started to get up towards Alexander. Alexander had been twirling Pannell's drill rifle while they were talking and had laid it back down against Pannell's bed. Alexander picked up the drill rifle and hit Pannell. Pannell fell back onto the bed. Pannell started towards Alexander again and called her a "____ing bitch." Alexander hit her again with the drill rifle. When Pannell fell back on the bed, Alexander hit her three more times with the drill rifle.
The confession continued. Alexander was "out of it" because of the codeine and
Alexander was charged with Pannell's murder following her confession to the investigators.
Claiming innocence, Alexander contended that the confessions had been the product of hypnotic suggestion and were thus inadmissible. Alexander claimed that the authorities had been desperate to solve the case and planted the story in her mind that she had killed Pannell. Judge Thomas J. Gardner, III of the Prentiss County Circuit Court held a three-day hearing in June, 1987, to determine if the statements made by Alexander to the investigators and in a letter to Price were voluntary or if they were made due to coercion, threats, or promises of leniency, or hypnotic suggestion. During the suppression hearing, the court heard from everyone who was present when Alexander confessed.
The trial judge overruled Alexander's motion to suppress the statements given to law enforcement officers and the letter written to Price while she was in custody. The court found "beyond a reasonable doubt" that Alexander was at no time hypnotized during the sessions with school psychologist Dr. Morris; that Alexander was properly advised of her rights, that she was not under the influence of hypnosis at any time when she made confessional statements, that Alexander acted voluntarily at all times pertinent to the confession.
A change of venue was granted Alexander due to publicity and the trial began on January 4, 1988. The jury heard 32 witnesses and reviewed 90 pieces of evidence. On January 25, 1988, the jury deliberated for about one hour 50 minutes and returned a verdict of guilty of manslaughter. Judge Gardner sentenced Alexander to twenty years in the custody of the Mississippi Department of Corrections.
THE TRIAL COURT DID NOT ERR IN OVERRULING THE MOTION TO SUPPRESS INCRIMINATING STATEMENTS AND ALLOWING SAME INTO EVIDENCE.
Alexander contends that the court's ruling at the end of the suppression hearing wherein the trial judge overruled Alexander's Motion to Suppress was in error because the State investigators improperly coerced her to make incriminating statements by the use of hypnosis and because she did not understand her rights due to hypnotic influence and the effects of post traumatic stress syndrome. Alexander bases this contention on the entire testimony of her psychologists, Dr. Guild and Dr. Stanley, Rhoads' admitted familiarity with hypnosis, testimony of her friend Belinda Posey that Alexander was "out of it" after seeing Dr. Morris, the school psychologist, and Dr. Morris's admission that he did in fact attempt hypnosis with Alexander at their last session.
When the voluntariness of a confession is at issue, the prosecution has the burden of offering a prima facie case of admissibility which, when rebutted by the defendant, then requires that the prosecution offer all witnesses to the confession. The accused offers testimony of inducement. See, e.g., Stokes v. State, 548 So.2d 118, 121 (Miss. 1989); Agee v. State, 185 So.2d 671, 673 (Miss. 1966). The accused is entitled to a preliminary hearing on admissibility. Agee, 185 So.2d at 673. And the prosecution bears the beyond-a-reasonable-doubt burden of proof. Stokes, 548 So.2d at 122.
Stokes, 548 So.2d at 122. Thus, the trial judge's finding that Alexander's statements were voluntarily given is a finding of fact that cannot be reversed unless he applied an incorrect legal standard or his order is clearly erroneous.
Mississippi law regarding the use or incidence of hypnosis is sparse. (The presence of hypnosis was first brought before this Court in 1965. This Court affirmed a conviction where the defendant was found guilty of violating the "Peeping Tom" statute and the defendant claimed he was acting under the influence of "sweetened water" which hypnotized him. Riley v. State, 254 Miss. 86, 180 So.2d 321, 324 (1965)).
While this Court rarely considers the role that hypnosis should play in the courtroom, hypnosis has apparently been used by law enforcement officers in this state for several years. This Court has upheld a search warrant based on a child's statement after "minor hypnosis" where the child had witnessed her own mother's death by shooting and then watched the killer burn down the house. Depreo v. State, 407 So.2d 102, 107 (Miss. 1981).
When Gary Lambert was found unconscious due to intoxication one morning lying next to the badly bruised body of an 86-year-old woman in Seminary, Mississippi, this Court upheld the conviction where an eyewitness's testimony offered by defense counsel was questioned by the State due to his being "possessed" through hypnosis. This Court said that the record was devoid of any credible eyewitness evidence to the homicide. Lambert v. State, 462 So.2d 308, 314 (Miss. 1984).
Ironically, Dr. Stanley, the same Dr. Stanley who treated Alexander and testified on her behalf in the case sub judice, has worked extensively with the State in preparing for trials. Dr. Stanley helps witnesses remember details of a crime by the use of hypnosis. In Nixon v. State, 533 So.2d 1078 (Miss. 1987), this Court allowed the testimony of a witness who had been hypnotized by Dr. Stanley because the hypnosis failed its purpose — to produce the tag number of the van driven by the accused. The witness's testimony of her recollection was allowed. Id. at 1094.
Besides the testimonials at the suppression hearing, Alexander relies on this Court's decision in House v. State, 445 So.2d 815 (Miss. 1984). In House, this Court for the first time considered aid of a criminal prosecution by testimony adduced through the use of hypnosis. The Court was faced with a situation where an eight-year-old girl accused House of forcing her to commit unnatural sex acts. The girl had also accused at least two other male persons with committing similar acts upon her. The girl was hypnotized by a doctor. The doctor then testified as to the facts surrounding the offense as told to him and gave his opinion that the girl was telling the truth. The young girl also testified. The Court found that the hypnotist may not testify as to facts constituting the crime told him by the victim during a hypnotic session, nor may he offer an expert opinion that the victim is telling the truth. Because the hypnotically refreshed memory of the victim is susceptible of having been "contaminated" during the hypnotic session, her testimony becomes admissible
House, 445 So.2d at 826-827.
Although Alexander relies on House, it is not similar to the case at bar. House involves hypnotically refreshed memory of a witness. In House, there is no question that the witness was hypnotized. In the case at bar, there is dispute as to whether the accused was even hypnotized. It is clear from the record that Dr. Morris did attempt to hypnotize Alexander at least once during the months following the killing in order to refresh her memory as a witness. However, controversy remains as to whether hypnosis was ever achieved. If Alexander was hypnotized as a potential witness in order to refresh her memory, then the guidelines of House probably should have been followed and clearly were not. However, the issue in this case is whether Alexander was ever hypnotized at all, particularly on the days when she made her confessional statements. A determination must be made initially that Alexander was hypnotized before an analysis is made that the proper guidelines were followed. Some question would remain as to what the proper guidelines would be. Since Alexander is the accused and is not a witness for the State, would the House safeguards even apply? It is not necessary to reach an answer to this question at this point. We must first determine if the trial court's ruling that her statement was not coerced and was not made under the influence of hypnosis is correct.
There are not any reported cases in Mississippi wherein an accused claims that a confession was not voluntarily given due to the effects of hypnosis. Whether Alexander was hypnotized is the threshold determination. Since this is a question of fact, the ruling of the trial judge should be upheld unless there is clear error. There is no evidence of clear error in the case at bar. The trial judge held a full three-day hearing on this question alone satisfying the Agee requirement. See Agee, 185 So.2d
Since the trial judge used the correct legal standard and found the statements admissible, there is no clear error rendering the judgment reversible on this issue. Further the court's finding is not contrary to the overwhelming weight of the evidence nor is it manifest error as mentioned in McCarty v. State, 554 So.2d 909, 911-912 (Miss. 1989). The Court found that the statements were given free and voluntary, that the defendant was given a "Miranda warning", and that the defendant was competent to give the statements.
THE TRIAL COURT DID NOT ERR IN SUSTAINING THE PROSECUTION'S OBJECTION TO DEFENSE QUESTIONS ABOUT WHY THE WITNESS AMY WHEELER HAD NOT DISCUSSED THE CASE PRIOR TO TRIAL.
Alexander contends that the trial judge erred in sustaining the prosecutor's objection to defense counsel's cross examination of Pannell's roommate, Amy Wheeler, about why Wheeler had not talked to counsel prior to trial when the case was being investigated. Alexander argues that this action by the trial judge infringed her right to confront the witness.
The State argues that defense counsel had already asked Wheeler why she had not talked to him before trial. Wheeler told defense counsel that she thought whatever information the defense sought was available through Steve Williams. The trial judge sustained the State's objection to the continued questioning. The State contends that the questioning was properly excluded because it was repetitive and called for a legal conclusion. The questioning of Wheeler by defense counsel transpired as follows:
Alexander relies on general Mississippi law that it is impermissible to restrict cross examination which is relevant to a witness's interest and credibility, Miskelley v. State, 480 So.2d 1104, 1112 (Miss. 1986), and that wide latitude is to be allowed a defense counsel on cross examination. See Crapps v. State, 221 So.2d 722, 723 (Miss. 1969); Cody v. State, 167 Miss. 150, 166, 148 So. 627, 632 (1933).
However, in the case sub judice, the questioning was not relevant to Wheeler's credibility. In a recent case involving an almost identical assignment of error, Sayles v. State, 552 So.2d 1383 (Miss. 1989), this Court found that the trial court correctly sustained an objection to defense counsel's question to a witness dealing with the witness's refusal to speak with defense counsel because the refusal to speak with defense counsel was not relevant
The trial judge has wide discretion when ruling on the admissibility of testimony. This Court has stated:
Sayles, 552 So.2d at 1387.
The trial judge's ruling was correct and within his discretion in limiting cross examination of Wheeler regarding her refusal to talk to defense counsel. The questioning of Wheeler was not relevant to her credibility.
The questioning also obviously called for an impermissible legal conclusion when defense counsel asked Wheeler to determine the importance of her testimony to Alexander's case. See Miss.R.Evid. 701.
THE TRIAL COURT DID NOT ERR IN RESTRICTING THE DEFENSE'S CROSS-EXAMINATION OF DR. BENNETT, THE STATE MEDICAL EXAMINER, CONCERNING AN FBI PROFILE.
When defense counsel attempted to cross examine Dr. Thomas Bennett, the State Medical Examiner who had performed the autopsy on Pannell, regarding an FBI Profile and possible contradictions between it and conclusions of Dr. Bennett about the causation of wounds, the trial judge would not permit the cross examination. Alexander claims that this prejudiced her trial.
The State claims that testimony about the FBI profile would have included hearsay. The FBI Agent, Ronald P. Walker, who prepared the report at the FBI lab in Quantico, Virginia, was not present to testify or authenticate or be cross examined in regard to the profile. Also, Dr. Bennett did not know the contents of the FBI profile. The profile had been marked for identification only and had not been introduced into evidence.
Defense counsel's examination of Dr. Bennett was as follows:
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Miss.R.Evid. 801(c). The FBI profile clearly falls within the definition of hearsay. It was a statement made out-of-court. Defense counsel never introduced it into evidence as a public record or report of a public agency pursuant to Mississippi Rules of Evidence 803(8). And defense counsel was offering the document to prove that the injuries to Pannell could only be inflicted by someone with great upper body such as a young man and could not have been inflicted by Alexander. In Gullett v. State, 523 So.2d 296 (Miss. 1988), when letters written by the brother of a defendant to their mother were admitted and the brother was not called to testify, this Court explained:
Gullett, 523 So.2d at 299.
The FBI profile was properly excluded as inadmissible in the case at bar just as the letter in Gullett was inadmissible. Both were written forms of hearsay offered into evidence to prove the truth of the matter asserted.
Defense counsel could have called the proper witness to offer the profile into evidence but did not. The profile was never proffered as evidence. Therefore, Dr. Bennett could not be examined as to its contents.
The trial judge properly excluded the FBI profile in the case sub judice. It was within the trial judge's wide discretion to control the cross examination as described in Sayles, 552 So.2d at 1387.
THE TRIAL COURT DID NOT ERR IN RESTRICTING THE DEFENSE'S CROSS-EXAMINATION OF STEVE RHOADS CONCERNING A NEWSPAPER ARTICLE ABOUT RHOADS' INVOLVEMENT IN THE CASE.
At trial, defense counsel wanted to examine Rhoads about statements which he had allegedly made to a reporter and published in newspaper articles which would have shown that he had possibly made contradictory statements concerning his interrogation of Alexander. The State had previously brought to the attention of the court by way of a motion in limine that this was a likely line of questioning. The State had made an objection in the motion in limine, and the judge had not yet ruled when Rhoads was put on the witness stand. During questioning of Rhoads, the judge ruled that the veracity of Rhoads could not be challenged in this manner. Alexander again claims that her fundamental right to confront a witness was violated.
At trial, Judge Gardner explained his ruling:
Pursuant to Gullett, 523 So.2d at 299, the newspaper article is inadmissible hearsay because the author was not present and the trial judge was correct to exclude it. As in Gullett, the newspaper article is a written statement by a declarant not before the court. The trial judge was within his discretion to control the cross examination of Rhoads. See Sayles, 552 So.2d at 1387. There is no error in this issue of appeal.
THE TRIAL COURT'S FAILURE TO DECLARE DR. J.E. MORRIS AS A HOSTILE WITNESS WAS HARMLESS ERROR.
The trial judge did not declare Dr. Morris, the school psychologist, to be a hostile witness when he was called by defense counsel. Alexander claims that Dr. Morris was closely aligned to the prosecution of the case, fit all parameters of the definition of hostile witness, and should have been treated as an adverse witness under Rule 611 of the Mississippi Rules of Evidence. Defense counsel wanted to ask leading questions of Dr. Morris. Alexander argues that she was prejudiced by the judge's failure to label Dr. Morris as hostile because defense counsel could not effectively present the needed testimony from Dr. Morris.
The State claims that there was no proffer made as to what additional information might have been introduced into evidence had Alexander been allowed to call Dr. Morris as an adverse witness and that Alexander was not harmed by not being allowed to use leading questions with Dr. Morris.
Rule 611(c) of the Mississippi Rules of Evidence provides, "When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions." As a general rule, leading questions should not be used on direct examination since they suggest the answers the attorney wants from his own witness. This gives unfair advantage to the party who is presenting his case. However, the judge has discretion in allowing leading questions. A party has the right of cross examination when questioning witnesses who are hostile or when questioning an adverse party or someone identified with an adverse party. Comment, Miss.R.Evid. 611(c).
The issue of who may be considered as identified with an adverse party was confronted in Harris v. Buxton T.V., Inc., 460 So.2d 828 (Miss. 1984). In Harris, this Court found error where the trial court refused the plaintiff's request to call as an adverse witness and ask leading questions of the defendant's building contractor. This Court reversed because the trial judge failed in his responsibility to determine from the facts and circumstances of the case whether the witness proposed to be called was one who was identified with the
According to Harris, the following test was set forth for determining how closely the witness must be identified with the adverse party in order to be considered hostile:
Harris, 460 So.2d at 833.
The Comment to Miss.R.Evid. 611 indicates that the Advisory Committee is cognizant of the Harris decision but considers the interpretation and application of "identified with the adverse party" to be broader than expressed in Harris.
In a more recent case, this Court considered what constitutes an adverse witness within the criminal context. In Hall v. State, 546 So.2d 673 (Miss. 1989), this Court found that a confidential informant called by the defendant qualified as an adverse witness and it was error to prevent the defendant from questioning the informant regarding a deal with the Government to avoid prosecution which may have indicated bias; however, the error was not reversible since the informant did not participate in the alleged sale of drugs and was not a witness in the State's case in chief, and the informant's possible motive for informing on the defendant was amply displayed to the jury. Id. at 675.
Dr. Morris was an adverse witness under Harris. Dr. Morris' acts are the predicate for Alexander's defense that she had been hypnotized. And Dr. Morris was a witness called by the State at the suppression hearing. However, as in Hall, this error is not reversible because Alexander was not prejudiced by not being "officially" allowed to lead Dr. Smith. The record indicates that defense counsel did ask leading questions of Dr. Morris anyway. For example:
Even though Dr. Morris may have been a hostile witness, there was no prejudice to Alexander by the failure to declare him as such. Defense counsel was still able to elicit from Dr. Morris that persons under hypnosis may have false memories, that one danger of forensic hypnosis is suggestive questions, that Dr. Morris does not have the ability to determine whether or not a person has been placed under hypnosis, that video tapes should be used when hypnosis is attempted, that a complete history should be taken before hypnosis is attempted, and that Dr. Morris has never been treated as an expert on hypnosis. The failure to declare Dr. Morris a "hostile" witness was error, but it was harmless error.
THE TRIAL COURT DID NOT ERR BY ALLOWING INTO EVIDENCE THE FACT THAT ALEXANDER WAS PREGNANT AT THE TIME SHE WAS IN JAIL.
Because the Assistant District Attorney inquired about whether Alexander's
The questioning of Alexander's stepfather, David Johnson, went as follows:
Defense counsel then moved for a mistrial. The court found that the emotional and physical condition of Alexander had been placed in issue by her counsel and overruled the motion for mistrial. The trial court also found that defense counsel did not object soon enough.
Alexander relies on two cases to support this assignment of error, Hughes v. State, 470 So.2d 1046 (Miss. 1985), and Smith v. State, 457 So.2d 327 (Miss. 1984). In Hughes, this Court reversed the conviction of a defendant charged with the sale of more than one ounce of marijuana when proof of an illicit relationship with a woman without the benefit of marriage was placed before the jury. The prosecutor's line of questioning in the drug case as to whether the defendant was "living with a woman" was improper. Id. at 1048.
In Smith, this Court reversed a conviction of a defendant accused of carrying a concealed weapon when the prosecutor subjected a defense witness to irrelevant, inflammatory and prejudicial evidence so as to deny the defendant his right to a fair and impartial trial. The prosecutor subjected a defense witness in Smith's trial to questions about her engagement in prostitution even though she did not have a conviction on such a charge. Id. at 335.
Both Hughes and Smith differ from the case at bar. The prosecutors in Hughes and Smith used the questioning about illicit relationships to raise doubt as to the credibility of the witness. The prosecutor in the controversy at hand used questioning about a pregnancy to illuminate Alexander's condition when she confessed to killing Pannell. The emotional and physical condition of Alexander was an issue of her defense. In fact, the gravamen of Alexander's entire defense was her physical and emotional status at the time of the confessions. Any medical condition that may have influenced Alexander at the time of the confessions was relevant.
Furthermore, pregnancy in of itself does not cast aspersions on a woman's character. Alexander's marital status was never placed in the record.
THE TRIAL COURT DID NOT ERR BY DISALLOWING A DEMONSTRATION IN THE COURTROOM BY WITNESS DR. STANLEY OF HOW EASILY THE DEFENDANT COULD BE HYPNOTIZED, ESPECIALLY IN LIGHT OF THE FACT THAT THE TRIAL COURT DID ALLOW A VIDEOTAPE OF A HYPNOSIS OF ALEXANDER. THE TRIAL COURT'S EXCLUSION OF CERTAIN TESTIMONY OF WITNESS DR. STANLEY REGARDING HIS PERSONAL OPINION ABOUT THE CASE WAS HARMLESS ERROR.
Alexander disputes the trial judge's decision to disallow her psychologist, Dr. Stanley, from testifying as to his opinions concerning Alexander's inability to be a competent witness on her own behalf and her inability to distinguish between fact and fantasy, both inabilities due to the effects of hypnosis. Dr. Stanley was also prohibited from giving an in-court demonstration of Alexander's susceptibility to hypnosis. Alexander claims that the testimony goes to the gravamen of her defense and that Dr. Stanley should have been allowed to give his opinion because Rule 704 of the Mississippi Rules of Evidence allows opinions on ultimate issues. Alexander also claims that the demonstration was probative and spoke to a pivotal issue in the case, Alexander's susceptibility to hypnosis.
The State contends that the pivotal issue was not whether Alexander could be hypnotized but whether she had been hypnotized at the time of her incriminating statements and letter. The State also argues that Dr. Stanley did give his personal opinion about the case when he stated that Alexander had been unknowingly hypnotized by Dr. Morris or Rhoads and had not been properly dehypnotized which left her in a highly suggestible frame of mind.
The Mississippi Rules of Evidence provide:
Rule 704 does not result in the admission of all opinions. It is an absolute requirement under Rules 701 and 702 that opinions must be helpful to a determination of the case before they are admissible. Furthermore, under Rule 403, evidence is excluded which wastes time. A question may not be asked which is based on inadequately explored legal criteria since the answer would not be helpful. See Comment, Miss. R.Evid. 703.
There is a difference between questions of opinion of guilt of a defendant and questions of opinion on other possible matters of ultimate fact. See United States v. Masson, 582 F.2d 961 (5th Cir.1978).
Questions which simply allow the witness to tell the jury what result to reach are impermissible, as are questions asking the witness for a legal conclusion. Dale v. Bridges, 507 So.2d 375, 378 (Miss. 1987) (citing Matthews v. Ashland Chemical, Inc., 770 F.2d 1303, 1311 (5th Cir.1985) and Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir.1983)).
The questions asked of Dr. Stanley as to his opinion regarding whether Alexander was suffering the effects of hypnosis called for an opinion as to an ultimate issue permissible under Rule 704. Dr. Stanley was not asked for his opinion as to whether Alexander was guilty or whether Alexander had voluntarily confessed. Dr. Stanley's opinion about prior hypnosis did not tell the jury what result to reach or provide a legal conclusion. His opinion was admissible.
The introduction of experiments or tests at trial are in the discretion of the trial judge. Experiments are viewed with caution because of the high risk of obtaining unreliable evidence. Hines v. State, 339 So.2d 56, 57 (Miss. 1976). Since hypnosis on Alexander would have been a
In sum, the trial judge was correct to exclude the demonstration but incorrect to exclude Dr. Stanley's opinion.
Even though the exclusion of Dr. Stanley's personal opinion was error, the error was harmless because it did not result in prejudice to Alexander's case. Dr. Stanley was able to state that he thought Dr. Morris or Rhoads had hypnotized Alexander; Dr. Stanley told the jury he thought a miscarriage of justice had occurred; and Judge Gardner did allow the defense to show a video tape of Alexander being hypnotized by Dr. Stanley.
THE TRIAL COURT DID NOT ERR IN PROHIBITING ALEXANDER FROM CALLING DR. GALVEZ, WHO WAS NOT ON THE WITNESS LIST SUPPLIED TO THE STATE, AS A WITNESS TO TESTIFY ABOUT WHETHER THE DRILL RIFLE WAS THE MURDER WEAPON AND ABOUT SEMINAL FLUID FOUND IN THE VICTIM.
Alexander maintains that her request to call Dr. R. Galvez should have been granted. Alexander wanted to delay the trial in order to present the testimony of Dr. Galvez to establish his opinions that the drill rifle was not the murder weapon and that possibly recent seminal fluid was present. Alexander argues that the trial judge's denial was improper and greatly prejudiced her.
The State argues that defense counsel had already presented opinion testimony through private investigator, A.W. Mooney, that the drill rifle was not the murder weapon and that a young girl would not have enough strength to inflict the fatal blows. Likewise, Dr. Guild had already testified that there was an indication of the presence of seminal fluid. The State contends that Dr. Galvez's testimony would have been merely cumulative.
The State also argues that Alexander did not follow discovery rules and was prohibited from calling Dr. Galvez because his name was not furnished to the State and he had not been subpoenaed.
When Alexander requested a delay in order to call Dr. Galvez, the court found:
Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice provides:
Discovery Rule 4.06 and case law pertaining to discovery violations by the State also govern discovery violations by the defense. This Court's decision in Darghty v. State, 530 So.2d 27 (Miss. 1988), explained that even-handed application of Rule 4.06 requires the same procedure to be followed when the State objects to testimony because of a defendant's violation as when the defendant objects for the same reason. Id. at 33.
In Houston v. State, 531 So.2d 598 (Miss. 1988), this Court found that a lower court's exclusion of a substantial portion of a defendant's evidence through its witnesses due to a discovery violation should rarely be used. The Houston lower court erred in excluding defense witnesses in the defendant's trial on ground that witnesses were not disclosed by a discovery deadline date, as the court did not provide prosecution reasonable opportunity to become familiar with the undisclosed evidence, and prosecution did not request a continuance. Id. at 612.
Darghty and Houston are unlike the case at bar because the excluded witnesses were on hand in Darghty and Houston to furnish testimony or be interviewed by the State for familiarization. In the controversy at hand, Dr. Galvez was not available to be interviewed by the State.
In Box v. State, 437 So.2d 19, 21 (Miss. 1983), this Court stated:
Justice Robertson's concurring opinion to Box v. State, 437 So.2d 19 (Miss. 1983), enumerated guidelines for evaluating discovery violations under Rule 4.06 of the U.Crim.R.Cir.Ct.Prac. In the recent decision of Traylor v. State, 582 So.2d 1003 (1991), this Court adopted and again enumerated those guidelines as follows:
Traylor, 582 So.2d at 1006.
In Box, Justice Robertson particularly noted, "Discovery under Rule 4.06 is a two-way street. When the defendant withholds discoverable evidence which, under Rule 4.06, he was required to produce, I would urge that these same guidelines be made applicable." See Box, 437 So.2d at 25, footnote 3. Our concern is with fairness, with avoiding unfair surprise to either the state or the defense. Where the evidence is otherwise admissible, with otherwise competent witnesses, where the sole objection is a failure to disclose in response to a discovery request, then the defect should be cured if possible and the evidence should be admitted and the case should proceed. Id. at 24. The guidelines would realistically and effectively tell the parties that their obligation to conform to discovery orders must be taken seriously. Id. at 25.
The Box-Traylor provisions have become the guidelines followed by this Court when discovery violations by either party are assigned as error on appeal, and the guidelines are strictly enforced against both the prosecution and defense counsel. See Jenkins v. State, 607 So.2d 1171 (1992). This Court has continually balanced Rule 4.06 violations with the resulting prejudice to the defendant. Moore v. State, 508 So.2d 666, 668 (Miss. 1987). While the guidelines of Rule 4.06 and Box-Traylor should be followed in a case such as the one at hand where the defense has violated discovery and offers undisclosed testimony, the guidelines could not have been met in the case sub judice due to the failures of the defense counsel. Defense counsel did not have Dr. Galvez at the courtroom ready to proffer testimony. The State could not be given the opportunity to become familiar with Dr. Galvez and decide whether to request a continuance. An opportunity for familiarization could not be granted because of the omission by defense counsel. The trial judge could not offer the State an opportunity of familiarization. It may not have been defense counsel's fault that Dr. Galvez was testifying at another trial, but if defense had followed discovery rules and had provided information to the court and the State earlier that Dr. Galvez was needed as a witness and a subpoena issued, Alexander's trial date would have been set accordingly.
Alexander was not prejudiced by the exclusion of Dr. Galvez's testimony. Defense counsel was able to produce testimony of a witness who stated that the drill rifle was not the murder weapon and that a young girl could not have inflicted the blows Pannell received. Defense also presented testimony that there was an indication of seminal fluid.
Because it is defense counsel's omission that prohibited the Box-Traylor guidelines from being followed, because Box recognizes the obligation to strictly follow rules and defense counsel at bar did not, and because Alexander was not prejudiced by the exclusion of Dr. Galvez's testimony, this assignment of error is without merit.
THE TRIAL COURT DID NOT ERR IN ALLOWING A GRUESOME AUTOPSY PHOTOGRAPH OF THE VICTIM'S OPENED SKULL TO BE ADMITTED INTO EVIDENCE.
Alexander contends that the introduction over objection of an autopsy photograph is reversible error because the picture had no probative value but served only to inflame the jury. The picture depicted
As a general rule, the admissibility of photographic evidence rests within the sound discretion of the trial judge. The trial judge's decision will be upheld on appeal unless abuse of discretion can be shown. Ladner v. State, 584 So.2d 743, 753-754 (Miss. 1991); Mackbee v. State, 575 So.2d 16, 31 (Miss. 1990). "[P]hotographs of bodies may be admitted into evidence where they have probative value, and where they are not so gruesome as to be overly prejudicial and inflammatory." Stringer v. State, 500 So.2d 928, 934 (Miss. 1986).
In Williams v. State, 544 So.2d 782 (Miss. 1987), this Court reviewed the admission of photographs showing the wounds of the victim as well as portions of the victim's autopsy. In determining that the trial court had correctly admitted the photographs into evidence, the court reviewed the broad discretion given to the trial judge. The court stated:
Williams, 544 So.2d at 785. (citations omitted)
In contrast to the almost limitless discretion of Williams is the recent decision of this Court in McNeal v. State, 551 So.2d 151 (Miss. 1989), the only decision thus far by this Court finding that a trial court abused its discretion in admission of a gruesome photograph. In McNeal, the court unequivocally found that the admission of photographs depicting the victim's "decomposed, maggot-infested" skull was an abuse of discretion and reversible error. The court stated:
McNeal, 551 So.2d at 159. (citations omitted)
In today's case, the photographs admitted into evidence recorded the cause of death of Pannell. While the opened skull is indeed graphic, it is not overly gruesome or inflammatory. The picture of the bruising on the victim's brain does not show additional, irrelevant, repulsive damage inflicted upon the body following a killing and before discovery by the authorities as in McNeal. The photograph establishes the cause of death as a severe beating about the head, temple and ear with a blunt instrument and depicts bruising to the brain. While Alexander does not deny the death of Pannell, the cause of death was part of the State's case-in-chief. Judge Gardner viewed the photographs outside the presence of the jury and overruled some of the objections after viewing the photographs for their relevance and probative value. The trial judge was within his discretion in determining that the probative value of the photograph outweighed any prejudice to Alexander.
THE PROSECUTOR DID NOT COMMENT DURING CLOSING ARGUMENT ON ALEXANDER'S RIGHT TO REMAIN SILENT.
Alexander contends that the District Attorney's closing argument to the
The State first argues that Alexander is procedurally barred from claiming that the prosecutor commented on the defendant's failure to testify because no contemporaneous objection was ever made. However, this Court may reverse even without a timely objection when the prosecuting attorney has commented upon the defendant's right not to testify. Griffin v. State, 557 So.2d 542, 552 (Miss. 1990) (citing Livingston v. State, 525 So.2d 1300, 1306 (Miss. 1988)); Griffin v. State, 504 So.2d 186, 193 (Miss. 1987); Stringer v. State, 500 So.2d 928, 940 (Miss. 1986); West v. State, 485 So.2d 681, 688 (Miss. 1985).
The State then argues that this comment referred to Alexander's lack of defense and does not comment on Alexander's failure to testify. The State submits that the comment was a legitimate remark on the evidence before the jury which was invited by the questions raised by the defense's closing argument. The State argues that defense counsel raised the question in closing argument of what the killer did about the copious quantities of blood that must have been on the rifle, towel, and the person of the killer and that the District Attorney was merely answering the question saying no one knew except Alexander, Pannell, and God.
The right of a defendant to remain silent is a federal and state constitutional requirement. In all criminal prosecutions the accused shall ... not be compelled to give evidence against himself. Miss.Const.Art. 3, Sec. 25. No person ... shall be compelled in any criminal case to be a witness against himself. U.S. Const.Am. 5.
Alexander relies on Harwell v. State, 129 Miss. 858, 93 So. 366 (1922), which held that reversible error exists when a prosecutor comments on the right of the defendant not to testify, and on Griffin, 557 So.2d 542, wherein this Court said:
Griffin, 557 So.2d at 552. In Griffin, this Court reversed the conviction of a defendant in a capital murder trial where an assistant prosecutor remarked during closing argument to the jury that "[T]hey tell you, there's one man alive today who can tell you what happened, and I agree with that. There is one person who could tell you what happened and we have — we have a statement — we have a statement from him. We have a confession, an oral confession, we have a written confession, yes, we do." This Court found that the remark directed the jury's attention to the failure of the defendant to take the stand and admit or deny the contents of the confession and was a direct remark commenting on the defendant's exercise of his constitutional guarantee. Id.
The State relies on Shook v. State, 552 So.2d 841 (Miss. 1989), which held:
Shook, 552 So.2d at 851.
In the case at bar, the District Attorney remarked that Pannell cannot talk because she is dead. His comment does not refer to Alexander's silence. He does mention that only Alexander and God know what happened in Pannell's room, but he does not observe Alexander's silence during trial. His comment refers to the defense presented and is within the wide latitude of closing arguments. The observation of District Attorney would be a reference to Alexander's failure to testify only if innuendo and insinuation were employed.
The conviction by a jury in the trial below is affirmed. The lower court found, within its discretion as a fact-finder, that Alexander was not hypnotized at the time of the incriminating statements. We find no error in the additional issue of appeal assigned by Alexander on appeal. We affirm the conviction of Alexander.
Finally, we note that this sad episode in our state's history has deeply troubled this Court. The image of a society where a young girl turns readily to deadly violence in order to resolve a disagreement with a girlfriend is dismal and sobering.
CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.
ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, SULLIVAN and BANKS, JJ., concur.
McRAE, J., concurs in result only.