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APRIL 17, 1985




Eric Fuselier brings this appeal from the Circuit Court of Jones County where he was found guilty of the April 25, 1983 capital murder of Mrs. Rose Gunter. At the sentencing phase of his trial the jury determined that the surrounding aggravating circumstances outweighed the mitigating circumstances and that as a result, Fuselier should be sentenced to die. Fuselier now brings this appeal and asserts thirty separate arguments to support his contention that his conviction and sentence should be reversed. Upon review of the record we conclude that although most of Fuselier's arguments have no merit, he is correct that a substantial number of errors occurred during his

trial. We are therefore compelled to reverse his conviction and sentence. Because we view these issues as dispositive of this appeal, we do not find it necessary to address the merits of Fuselier's other arguments.


 In the early morning hours of April 25, 1983, Mrs. Rose Gunter was brutally murdered in her home in the Shelton community of Jones County. When Mrs. Gunter failed to show up for work that morning, her daughter, Brenda Winstead (with whom she worked) phoned her husband, Joe Winstead, and asked him to check in on her mother. When Mr. Winstead arrived at his mother-in-law's home it was immediately apparent that something was askew. Her car was missing and the door into her house from the carport was open. Numerous files and ledgers were strewn about the carport floor. Entering the home, Mr. Winstead found a scene of horror and brutality. The house had been ransacked, a television was missing and Mrs. Gunter's bedroom door kicked in. Lying blindfolded and gagged on her blood stained bed sheets Mrs. Gunter lay dead.

 An autopsy performed by Dr. Sergio Gonzalez revealed that Mrs. Gunter had been stabbed forty-one times. All of these wounds were to the front of her body. In Dr. Gonzalez's opinion she could have survived only fifteen to twenty minutes after suffering these wounds; however, she did not necessarily live that long, depending on which of the wounds were inflicted first. The wounds had various angles of entrance which indicated to Dr. Gonzalez that more than one knife was probably used. The state produced two knives, either of which Dr. Gonzalez testified could have caused all of the wounds. These knives were later identified as having been in the possession of David McFee and Eric Fuselier.

 McFee was living with Ms. Leslie Corley in a house near Mrs. Gunter's. Eric Fuselier had been staying with them since his escape from the Louisiana State Penitentiary about three weeks earlier. The state's theory was that McFee and Fuselier were jointly responsible for the murder of Mrs. Gunter.

 Leslie Corley testified that on the day of the murder McFee and Fuselier spent the day in her yard working on a well pump. They were being assisted by Jerry Smith and Marion Nowlen. During the course of the day they had four to five cans of beer apiece. Because neither McFee nor Fuselier had any money, Smith loaned McFee twenty dollars

 to get a part for the pump. They quit working between 7:30 and 8:00 in the evening and McFee and Fuselier came into the house. They had dinner, played cards for a while and then Ms. Corley went to bed at approximately midnight or one o'clock. McFee and Fuselier stayed up. In the early hours of the morning McFee awoke Ms. Corley to tell her he was leaving for New Orleans.

 During the day while McFee and Fuselier were gone Ms. Corley washed some clothes. Because she didn't have running water to the washing machine, Ms. Corley had to carry water in buckets to the machine. She noticed one of her children dipping a broom in a bucket of water and sweeping the driveway. She stated that a dried red material which resembled blood was on the driveway. When she took the clothes out of the washing machine, she found an additional pair of jeans, bandannas and a T-shirt that she had not placed there. She identified the T-shirt as belonging to Fuselier.

 The state further attempted to connect Fuselier and McFee with Mrs. Gunter's murder by establishing that the knives which Dr. Gonzalez suggested may have been the murder weapons had been in their possession and control.

 The state also produced David McFee's mother, Mrs. Freddie LeBlanc, who testified that Fuselier and her son arrived at her home in New Orleans, Louisiana on the morning of April 26, 1983, driving a blue Oldsmobile. Fuselier had scratches on his face which he explained he got from shaving. Mrs. LeBlanc agreed to purchase jewelry, a fan and a flashlight from them for twenty dollars. All of these items were identified by Mrs. Gunter's daughter as having belonged to her mother. Mrs. LeBlanc testified that the two men also had a large television in the trunk of the car but that she did not buy it.

 Ricky Anthony Holmes, the owner of a paint and body work shop in New Orleans, testified that he was in his shop with an employee, Ricky Munn, when Fuselier and McFee drove up in a light colored Oldsmobile. McFee was driving. McFee told Holmes to repair the car and drive it back to Laurel, Mississippi. Holmes testified he received all of his instructions from McFee and that Fuselier was not involved in the conversation.

 Ricky Munn testified that he had known McFee since they were children. Several hours after McFee and Fuselier left the Oldsmobile at the body shop, Munn borrowed the shop's wrecker and gave them a ride back to the Corley home

 in Mississippi. Shortly thereafter McFee and Fuselier were arrested.

 The key defense witness was David McFee. McFee testified that he and he alone was responsible for killing Mrs. Gunter. He specifically denied that anyone helped him. On cross-examination it was revealed that McFee had made three prior inconsistent statements. In the first two of these, dated May 5, 1983 and June 1, 1983, respectively, McFee had denied any involvement in Mrs. Gunter's killing. He blamed the entire episode on Fuselier. The third statement was an oral statement to investigators that was never reduced to writing. McFee testified that this third statement was not actually a statement but that the investigators had made statements to him and McFee simply agreed with those statements. He testified that because he had been willing to agree with anything the investigators told him, he could not remember what was said in the third statement.

 As to the first two statements, McFee was adamant that they were untrue. He testified that the only thing Fuselier did was to help load Mrs. Gunter's television. He stated that they had taken some pills McFee had found at the dump and that Fuselier had fallen asleep in Mrs. Gunter's carport during the crime. According to McFee, Fuselier was totally unconscious. After killing Mrs. Gunter, McFee awakened Fuselier and they loaded the television set. Fuselier was driving Mrs. Gunter's light colored Oldsmobile as they left; however, because his erratic driving caused them to go off the highway, McFee took the wheel. McFee asserted that anything in his prior statements which was contrary to this version of the events was untrue. Over the objection of the defense counsel, McFee's first two statements were admitted into evidence.

 On redirect examination, McFee testified that he had given a fourth statement on January 20, 1984. That statement was consistent with his trial testimony and in it he admitted all responsibility for Mrs. Gunter's murder. He testified that he had given the first three statements because he had been told by law enforcement officers that he would be helping himself if he did so. Prior to the January 20, 1984 statement, McFee had indeed entered into a plea bargain with the state by which he had pled guilty to Mrs. Gunter's murder and been sentenced to life imprisonment. Presumptively, up until the time the state learned of McFee's January 20, 1984 statement, it had expected him to testify against Fuselier.

 The facts are further developed below as required by the discussion of legal issues. It is sufficient at this point to again state that the jury determined that Fuselier was guilty of capital murder and following the sentencing phase of trial, he was sentenced to death.



 As explained above, during the cross-examination of David McFee, the state moved to introduce two prior inconsistent written statements of his. The state offered the first statement after examining McFee in relation to it. Throughout McFee's testimony he freely admitted that he had made the statement. He was cross-examined as to all of the inconsistencies between the statement and his testimony. He freely admitted those inconsistencies and asserted the falsity of the statement. It was after the state had fully used the statement to impeach McFee's credibility that it offered the document itself into evidence. At that point the defense objected on the ground that McFee had admitted making the statement and the inconsistencies therein. The trial court overruled that objection and accepted the statement into evidence.

 As to the second statement, the state offered it into evidence prior to examining McFee regarding its inconsistency with his testimony. The state merely established that McFee had made the statement and signed it. The defense objected that no foundation had been laid for admitting the statement and because the statement had not been provided to the defense under the rules of discovery. The court overruled both objections and admitted the second statement into evidence.

 This Court recently decided the case of Moffett v. State, 456 So.2d 714 (Miss. 1984). In that case the state was permitted to introduce into evidence a prior out-of-court statement made by a witness who admitted that he had made the statement and insisted that its contents were untrue. We addressed the admissibility of the witness' statement as follows:

 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, 336 So.2d 213, 216-17 (Miss. 1976) (defendant entitled to instruction that prior inconsistent statement may not be used as proof of guilt).

 * * * *

 There is a more practical reason why the statement should not have been given to the jury. The average juror will have a difficult enough time without the statement sitting in his lap keeping distinct in his mind that which he has heard as evidence and what he has been told may be considered for impeachment only. Many suggest it is folly to think juries can - or will even attempt to - keep this distinction in mind. (Emphasis added)

 Moffett at 719, 720.

 Just as the admission of the witness' statements in Moffett constituted reversible error, so do the admission of McFee's statements in the instant case. McFee's first statement was admitted after he fully acknowledged making the statement and the inconsistencies contained therein. The second statement was admitted into evidence before any predicate was laid showing it was inconsistent with McFee's testimony at trial. As in Moffett, the error of admitting these statements into evidence was compounded when the district attorney argued them as substantive evidence of Fuselier's guilt during closing arguments. The district attorney told the jury "David McFee testified for him but, you know, after I got through cross-examining David ...

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