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JULY 16, 1986





The petition for rehearing filed by the state is overruled. The original opinion is withdrawn. The following is the opinion of the Court.

 James Michael (Jimbo) Stringer appeals from his conviction of capital murder and sentence to life imprisonment.

 Because of the introduction into evidence of virtually all of his testimony from a prior trial in which his father was defendant as part of the state's case-in-chief, we reverse.


 On Monday evening, June 21, 1982, Birty Ray McWilliams and Nellie S. McWilliams (Mr. and Mrs. Ray McWilliams) were brutally murdered at their home in Jackson, Mississippi. On July 2, 1982, a Friday, Jimmy Michael (Jimbo) Stringer, Defendant below and Appellant here, was arrested and charged with the two murders. Also charged were James R. Stringer (the father of the present Defendant), John Mack Parker, Mike Meddars and Rhonda Brock.

 On July 9, 1982, Jimbo Stringer was formally charged in an indictment returned by a Hinds County grand jury with the capital murder of Nellie S. McWilliams in the course of an attempted robbery of Birty Ray McWilliams, in violation of

 Miss. Code Ann. 97-3-19(2)(e) (Supp. 1983). Stringer entered a plea of not guilty to all charges. At that time Jimbo Stringer was only 20 years old.

 On Monday, January 31, 1983, this case was called for trial in the Circuit Court of the First Judidical District of Hinds County, Mississippi. On Friday, February 4, 1983, the jury returned its verdict finding Jimbo Stringer guilty of capital murder. That afternoon, Stringer was put to trial on the question of sentence and on Friday evening, February 4, 1983, at approximately 10:18 p.m. the jury certified to the court that it was unable to agree upon punishment. In compliance with Miss. Code Ann. 99-19-103 (Supp. 1983), the circuit court sentenced Jimbo Stringer to life imprisonment.

 Following the usual post-trial motions, all of which were denied, this appeal has been perfected.

 What happened on the evening of June 21, 1982, has been recited in this Court's opinion regarding the appeal of James R. Stringer (the instant Appellant's father) which is reported as Stringer v. State, 454 So.2d 468, 471-473 (Miss. 1984). The facts there are stated extensively, regarding the defendant James R. Stringer, not Jimbo. Still that narrative makes necessary here only an abbreviated statement of facts.

 The two principal witnesses for the state in both trials were Mike Meddars and Rhonda Brock. They testified that, during the day of June 21, 1982, they met with James R. Stringer and planned the murder and robbery.

 James R. Stringer was in the business of buying and selling gold, silver and jewels. He owned a place of business in Jackson which in large part was operated and managed by his son, Jimbo. Ray McWilliams was also in the business of buying and selling jewelry and operated from his home. Testimony in the record reflected that in connection with his business he kept considerable sums of money in a safe in his home. The Stringers and Ray McWilliams had done business with each other in the past.

 Parker, Meddars, Brock and the two Stringers met in the early part of Monday evening. Jimbo Stringer, at his father's request, brought extra bullets and a shotgun with a shortened barrel and handle called a "riot" gun - a case for which is one of the items of evidence in controversy here.

 The five then left for the McWilliams' home. James R. Stringer and Rhonda Brock got out of the car and went to the door. When McWilliams opened the door, James R. Stringer drew his .357 Magnum revolver and ordered McWilliams to remain in the room. McWilliams grabbed for the pistol and the two started to scuffle during the course of which the pistol fired striking nothing but the wall.

 By this time Jimbo Stringer, Parker and Meddars had entered the premises. According to Brock and Meddars, Parker fired and killed Ray McWilliams. Nellie S. McWilliams was on the floor beginning to crawl when Jimbo Stringer placed the end of the riot gun to the back of her head and pulled the trigger, killing her instantly.

 Suffice it to say that there was substantial evidence in the record from which the jury could have concluded that Jimbo Stringer shot and killed Nellie S. McWilliams while he was engaged with the others in an attempt to rob Birty Ray McWilliams.


 Stringer's first assignment of error is the admission into evidence of a shotgun with a 30-inch barrel and a shotgun case. In his brief his sole basis for error in the admission of this evidence is that it was the fruit of an invalid search. His initial trial objection, however, was that these items were irrelevant.

 The record reveals the state brought the matter of introducing these items to the trial court's attention during a recess:


 BY MR. KELLEY: Judge, we have a minor problem with this thing. Judge, I have read the transcript of both prior trials and find that the State has put on evidence intending to show that the deceased was killed with a riot gun, a short shotgun. Now, this shotgun that was brought in, I understand, was seized at the Defendant's home when he was arrested. This shotgun has a thirty inch barrel with a full choke. If it has any relevancy and the State is now contending that this was the shotgun that was used in the slaying, we have no objection to letting it in provided the

 search warrant was good. If they're contending that it was not the shotgun that was used, we would object to it because obviously it's only used to prejudice the Jury. This is a matter we'd like to go into outside the presence of the Jury because the mere fact that a shotgun was laying on the table before the Jury, whether or not it gets into evidence, would be prejudicial.

 BY THE COURT: Well, we'll got into it outside the presence of the Jury. Go ahead. What do you have?

 BY MR. KELLEY: Well, it depends on what they have. I - I don't have anything to do with it other than there hadn't been any evidence - in the first place, there's been no evidence that a .12 gauge shotgun was used. In the second place, in both prior trials the State has said that a riot gun was used and this is not a riot gun, so if they're justifying it, I'd like to go into the search, you know.

 BY THE COURT: That's the first thing I would say. Who are your witnesses on the search?

 BY MR. PETERS: Rod Erikson, Your Honor.


 Following this colloquy the state offered testimony on the validity of the search, and the court overruled the defense objection.

 When the state rested the defense moved for a directed verdict and also to exclude the evidence offered by the state, which was overruled.

 Upon appeal Stringer argues that the search was constitutionally invalid because there was not probable cause to issue the search warrant, and it was therefore reversible error to admit the items into evidence.

 With a capacity to ignore the obvious not matched this side of Poe's "The Purloined Letter," defense counsel upon appeal enigmatically makes no mention of relevancy, a point he fully recognized during trial.

 We need not address the nettlesome question raised by Stringer's counsel in this assignment. This case is being

 reversed on another ground. We do note for the trial court that these items are clearly irrelevant and should not be admitted into evidence upon retrial.


 Stringer next assigns as error the trial court's overruling of his objection to the state's introduction of his entire testimony given at a prior trial where he was a mere witness. That prior trial was the capital murder trial of his father, James R. Stringer. In fact, Jimbo's entire prior testimony was not introduced, but ninety percent of it was.

 Stringer concedes, as he must, that any prior testimony is admissible if it is inculpatory or if any statements are relevant to the issues in the case or if there are statements which are declarations against penal interest. Here, however, practically the entire testimony from the prior trial was introduced, and in a rather curious form. The trial judge went through the entire transcript with counsel. Portions of Stringer's testimony at the prior trial were deleted, e.g., references to Stringer having smoked the marijuana the night in question. In addition, various points where objections had been made and sustained in the prior testimony were deleted. Then the court reporter who took the testimony was called and read to the jury the edited transcript of Stringer's testimony. This edited "narrative" of the court reporter extends for almost 40 pages in the transcript (R.843-871), and includes a rather extensive cross-examination by the district attorney which at times amounts to little more than a harangue.

 This evidence was offered below as a part of the state's case-in-chief. Had Jimbo Stringer taken the stand, and if his prior testimony had been used to impeach him, we would have a different situation. Or, if he had taken the stand and the state had offered his prior testimony as part of its rebuttal, again matters would be different.

 Prior to his testimony at his father's trial, Jimbo Stringer was advised of his right to remain silent by the trial judge in open court. He was expressly told that anything he said at his father's trial might be used against him in his own subsequent trial. In addition, Jimbo Stringer was represented by counsel at the time of that testimony and, indeed, it was his own counsel who questioned him on direct examination.

 Over objection the trial court permitted the court reporter to take the stand and state, from her transcribed notes, the questions the lawyers had asked and the answers Jimbo Stringer had given. The court reporter's testimony technically was hearsay, but the context suggests the familiar former testimony exception to the hearsay rule. See Smith v. State, 247 So.2d 705, 706 (Miss. 1971); Lee v. State, 124 Miss. 398, 416, 86 So. 856, 858 (1921).

 The foremost requirement of the former testimony exception, however, is that the witness or declarant be unavailable. Williams Yellow Pine Co. v. Williams, 187 Miss. 425, 432, 193 So. 1, 2 (1940); Owens v. State, 63 Miss. 450, 452-53 (1896). Dicta in some cases have suggested that in a criminal trial the out-of-court declarant must have actually died in order to be declared unavailable. Smith v. State, 247 So.2d 705, 706 (Miss. 1971). See McCormick, Evidence 253(6), at 612 (2d Ed. Supp. 1978).

 Our attention has been called to Arrington v. State, 411 So.2d 779 (Miss. 1982) and McMasters v. State, 83 Miss. 1, 35 So. 302 (1903). In each of these cases the prior testimony offered was that given by the defendant at his own prior trial - not at the prior trial of someone else (although arising out of the same general incident). More important, Arrington and McMasters correctly hold that so much of a defendant's testimony at a former trial which constitutes an admission, as that concept is understood in our law of evidence, may be presented as evidence at a subsequent trial of that same defendant. Nothing in Arrington and McMasters holds or suggests that prior testimony that does not fit within the definition of an admission may be so used.

 The prior testimony of Jimbo Stringer as introduced to the jury at the trial in question is unremarkable. His description of the events of June 21, 1982, is simply that he came home from work early that day and never left the apartment that night, i.e., he did not go to the McWilliams' home. He states that he talked to his father on the telephone several times that evening. Stringer admitted that he did own a 12 gauge shotgun but stated that he sold it a few months before the McWilliams murders to someone named John who lives in Oregon.

 Other than the admission that he once owned a gun similar to one of the guns used in the McWilliams killing, there are no statements in the testimony which are in any way incriminating and therefore admissible as admissions.

 On the other hand, there is the extensive cross-examination which is pure impeachment testimony. If Jimbo Stringer had taken the stand in his own defense at the trial in question, arguably this testimony would have been admissible in rebuttal. But he did not and this previous testimony should not have been admitted. See 29 Am. Jur. 2d Evidence 738 (Supp. 1984) (former testimony is hearsay and must fit into an exception such as "admission"); McCormick, Evidence, 254, at 615-616 (2d Ed. Supp. 1978) (same).

 We hold that the trial court committed reversible error when it received into evidence portions of the prior testimony of Jimbo Stringer which could not fairly be characterized as admissions and when it overruled Stringer's objections thereto.

 The judgment of conviction of Jimmy Michael (Jimbo) Stringer of the crime of capital murder and the sentence of life imprisonment imposed pursuant thereto are vacated and reversed, and this case is remanded to the Circuit Court of Hinds ...

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