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AUGUST 22, 1984





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.


 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.


 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 that 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, 1981 statement or admit under oath that any of its contents were true.

 At the conclusion of the cross-examination, the State offered into evidence a five-page typed, transcript of the March 2, 1981 interview. The defense objected, urging that the statement could be used only to impeach the witness' general credibility and not as substantive evidence. The prosecuting attorney seemed to concede the point stating:

 Judge, for the purposes of, I'm not attempting to use this as substantive law [evidence (?)] because I think we've already made out a prima facie case with the testimony of Kimberly Butler. You know, I

 think I can, without his testimony, you know, in other words, without his testimony, I can get the jury.

 The trial judge withheld the statement from the jury at that time. Subsequently, the statement was received into evidence and the state did in fact rely heavily on the statement as substantive evidence particularly in its final argument to the jury.


 In this context, we are presented on this appeal with two distinct though interrelated questions:

 (1) On these facts, was the State "surprised" so that it was entitled (a) to ask Johnson leading questions and (b) to impeach Johnson's credibility?

 (2) Assuming arguendo an affirmative answer to these questions was the State entitled to have received into evidence the unsworn, out-of-court statement made by Johnson four and one-half months prior to trial?


 At common law a party was prohibited from impeaching his own witness. This has been the general rule in Mississippi. Moore v. Chicago, St. Louis & New Orleans R.R. Co., 59 Miss. 243, 248 (1881); Bove v. State, 185 Miss. 587, 547, 554, 188 So. 557, 558 (1938); Manning v. State, 188 Miss. 393, 398, 195 So. 2d 319, 320 (1940). The party calling the witness is said to vouch for his credibility. The underlying premise is that, a trial being a search for the truth, a litigant has no business presenting a witness whose credibility is open to serious doubt.

 We recognize today that the rule is not in favor. It has become riddled with exceptions. See, e.g., Hall v. State, 250 Miss. 253, 165 So. 345 (1964) ("The State is not bound by the testimony of a witness who unexpectedly proves hostile)." It has been abrogated altogether in civil cases. Rule 43 (b)(4) Miss. R. Civ. P., effective January 1, 1982, provides that the "credibility of a witness may be attacked by any party, including the party calling him."

 We are aware that there are pending before the Court at this time proposals that the rule be abrogated in all cases, not just civil. Those proposals are not made in this case. The State concedes that the rule still exists and remain

 enforceable in criminal cases, insisting only that this case falls within the well-recognized "surprise" exception. Indeed, if ever there be a case where the underlying premise of the rule is valid, it is when the State is selecting its witnesses in a capital murder trial.

 All therefore agree that the State had no right to cross-examine Johnson and further to impeach Johnson on cross-examination, absent a showing that the State was genuinely surprised by Johnson's testimony and that he had become unexpectedly hostile. The foundation which the State was required to lay in this case has been described authoritatively in Hall v. State, 250 Miss. 253, 165 So. 2d 345 (1964):

 The party must first show that the evidence as given, has taken him by surprise and that the witness is hostile. The witness may then be asked if he has made contradictory statements out of court, the times, places and circumstances of the details being described to him in detail. Underhill's Criminal Evidence Vol. 1, 5th ed., p. 547.

 250 Miss. at 264, 165 So. 2d at 350.

 On the other hand, where the witness' repudiation of his prior statement is well known to the State's attorney prior to the time the witness is called to testify, there is in fact and in law no surprise - and hence the State's attorney cannot and may not claim surprise. Hall v. State, 250 Miss. 253, 263, 165 So. 2d 345, 350 (1964); see Allison v. State, 447 So. 2d 649, 650 (Miss. 1984) (state must establish that it was taken by surprise); Young v. State, 425 So. 2d 1022, 1028 (Miss. 1983) ("evidence indicating surprise" necessary); Gardner v. State, 368 So. 2d 245, 248 (Miss. 1979) ("unexpectedly hostile"); Hooks v. State, 197 So. 2d 238, 239-40 (Miss. 1967) (must show that evidence has "taken him by surprise); Rutland v. State, 170 Miss. 650, 653-54, 155 So. 681, 681-82 (1934) (must be a situation where prosecutor was" deceived or mislead by fraud or artifice "). The facts of this case make it clear that the foundation requirements for coming within the exception to the general rule have not been laid. The prosecution called Johnson to the stand as its witness as a part of its case in chief. The prosecuting attorneys knew well when Johnson was placed on the stand what his testimony would be, and, more specifically, that his testimony would be unfavorable to the State. The prosecuting attorneys knew that Johnson would repudiate his March 2, 1981 statement. They had known this for some 30 hours

 before Johnson was called. Under these circumstances, it was error for the trial judge to have allowed the district attorney, first, to cross-examine the State's own witness and, second, to impeach his credibility regarding his direct testimony of what did and did not happen on the evening of December 27, 1980. See Young v. United States, 97 F.2d 200 (5th Cir. 1938) (error to admit prior statements where prosecutor knew before placing witnesses on the stand that they would recant).


 A technically distinct, though practically linked question arises out of the trial judge's ruling allowing the transcript of the March 2, 1981 statement to be received into evidence. Having concluded that the leading questions asked on cross-examination were improper and that the State did not come within the exception to the rule so as to be entitled to impeach its own witness, the trial court compounded the error by allowing the unsworn out-of-court statement to be used as substantive evidence against Moffett.

 It is hornbook law, firmly embedded in the case law of this State, that unsworn prior inconsistent statements may be used for impeachment of the witness' credibility regarding his testimony on direct examination. The prior inconsistent out-of-court statements made by one not a party may not be used as substantive evidence. Ellis & Williams, Mississippi Evidence 46 (1983); Davis v. State, 431 So. 2d 468, 473 (Miss. 1983); Magee v. Magee, 320 So. 2d 779, 783 (Miss. 1975); Sims v. State, 313 So. 2d 388, 391 (Miss. 1975); Hall v. State, 250 Miss. 253, 264, 165 So. 2d 345, 350 (1964).

 Where the non-party witness admits having made the prior, out-of-court statement, the statement where reduced to written form, should never be introduced into evidence.

 If the witness confesses or admits having made prior inconsistent statements, ordinarily there is no necessity for further proof, as by the admission of the prior inconsistent written statement.

 Davis v. State, 431 So. 2d 468, 473 (Miss. 1983); Sims v. State, 313 So. 2d 388, 391 (Miss. 1975); Hammons v. State, 291 So. 2d 177, 179 (Miss. 1974); Hall v. State, 250 Miss. 253, 264, 165 So. 2d 345, 350 (1964); see Hubbard v. State, 437 So. 2d 430, 434 (Miss. 1983) (" obviously for impeachment purposes "); Murphy v. State, ...

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