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JAMES HENRY FOSTER v. STATE OF MISSISSIPPI

MAY 27, 1987

JAMES HENRY FOSTER
v.
STATE OF MISSISSIPPI



EN BANC

WALKER, C.J., FOR THE COURT:

James Henry Foster was charged by indictment with the capital murder of Ruby Jean Elliott. In a bifurcated trial in the Circuit Court of the Second Judicial District of Bolivar County, he was convicted of capital murder and sentenced to death. From that conviction he appeals, assigning seven (7) errors. Because the trial court improperly limited Foster's cross-examination of the State's key witness, we reverse the conviction and remand the cause for a new trial.

On the morning of April 2, 1984, the body of Ruby Jean Elliott was found in a vacant lot near Shaw, Mississippi. An autopsy performed by Rodrigo Galvez, M.D., revealed that the cause of death was massive internal bleeding resulting from a deep stab wound to the chest. Laboratory tests indicated that seminal fluid was present in both the vagina and the rectum.

 As the result of a police investigation, Foster was arrested and charged with capital murder. His first trial ended in a mistrial when the members of the jury were unable to agree on a verdict. Prior to the second trial, defense counsel moved for a change of venue, but the motion was denied by the trial court. At the conclusion of the guilt phase of the second trial, the jury returned a verdict of guilty of capital murder. The sentencing phase was then conducted, after which the jury found that Foster should suffer the death penalty. Sentenced to die by lethal injection, Foster has appealed his conviction and sentence to this Court.

 I. DID THE TRIAL COURT ERR IN FORBIDDING CROSS EXAMINATION OF HENRY LEE CURRY CONCERNING, AMONG OTHER THINGS, THE TREATMENT HE HAD RECEIVED IN THE BOLIVAR COUNTY JAIL?

 The evidence which the State presented at trial was largely circumstantial, with the notable exception of Henry Lee Curry's testimony regarding Foster's alleged "jailhouse confession." While Foster was incarcerated in the Bolivar

 County Jail after his arrest, Curry was also imprisoned there, following a recent conviction. According to Curry's testimony, Foster told Curry, in detail, how he had raped and murdered Elliott. In May or June of 1984, Curry escaped from the Bolivar County Jail, apparently subsequent to hearing Foster's confession. After being at large for fifty (50) days, Curry was apprehended in Chicago, Illinois, and was returned to Mississippi.

 Because Curry was the State's "star witness," defense counsel quite naturally pursued every possible avenue of impeachment, including prior inconsistent statements, prior convictions, preferential treatment by Bolivar County law enforcement officers, and lack of prosecution for his escape from the Bolivar County Jail. In particular, defense counsel attempted to show that in return for Curry's testimony, Bolivar County officials transferred Curry from the State Penitentiary to the Bolivar County Jail, even though Curry had previously escaped from that jail.

 Before its direct examination of Curry, the State moved the trial court to prevent defense counsel from cross-examining Curry extensively on the unindicted offense of escape, as the State claimed the defense had done in the first trial. The trial court made this ruling on the motion:

 Now, from the Court's research of the law, under ordinary circumstances prior arrests or charges that don't amount to convictions are normally not admissible for impeachment. But where there could be an inference of or where there was an indication that there possibly could be some inducement had been made to the witness to testify the Court has the discretion of allowing cross-examination with the Court limiting that as it sees fit. And the Court is ruling that it will allow cross-examination with regard to that particular subject matter up to either an admission or a denial by the witness as to whether he was or was not charged.

 * * *

 - Now, I don't want to go into any details on how he has been treated or anything else other than the pure fact of his arrest or non-arrest.

 We are going to the credibility of this witness and the only reason that I am letting this in at all is because there could be some inference that he had some inducement to testify for the State and because of that possibility - ordinarily I wouldn't allow any testimony concerning any other charge that he has not been tried and convicted for. It is somewhat in the posture of - not an accomplice but it is sorta [sic] in the same posture as a person testifying as an accomplice - the basic principles seem to apply in a case of this sort.

 * * *

 As I recall there were assumptions or questions [during the first trial] couched in terms such as, "well, you were allowed to have the run of the jail," and you were brought back - well, I've really forgotten the exact details but it went way beyond anything that had been presented in the courtroom as to how he was treated. If anything like that come in of course, the State would be entitled to rebut it.

 * * *

 Well, the Court has said it would allow and as to whether or not he was charged with that crime and beyond that - I think whatever his answer to it is fit. If you consider him to be falsifying, then you have the right to prove otherwise if you can. But I am going to limit it to that. I will not allow the testimony as to his being transferred back and forth or how he was transported or why. It is just a matter of whether or not he was arrested and charged - but no questions as to whether he was tried or not, just to whether he was charged.

 Defense counsel then made this offer of proof:

 Your Honor, I would respectfully request the Court that I be allowed to ask this witness, first of all, if he says he has been arrested questions concerning whether or not he has been tried for this charge; secondly, I would ask to be allowed to ask this witness where he has been incarcerated since he was returned to the Bolivar County Jail and whether or not members of the Bolivar County [sic] Sheriff's Department personally transported him from the penitentiary - Mississippi State penitentiary back to the Bolivar County Jail at the request of this particular inmate, Curry, who will openly admit, as I understand it from his former testimony, that he has escaped from the same jail that is the Bolivar County Jail. The reason that I ask that be allowed to ask him those questions, I think the jury has a perfect right to determine whether or not the same law enforcement agency, the Bolivar County Sheriff's Department, has indeed offered him anything such as transfer from the penitentiary to the Bolivar County Jail for incarceration here for his testimony today which is going to be extremely damaging to the Defendant in light of the fact that it is a so called confession statement.

 Foster argues on appeal that the trial court unduly restricted his cross-examination of Curry. Because we agree that Foster was denied the right of confrontation, we are compelled to reverse the conviction.

 The accused in a criminal trial has a fundamental right, implicit in the confrontation clauses of our state and federal constitutions, to cross-examine the witnesses testifying against him. U.S. Const. Amend. VI; Miss. Const. Art. 3, 26; Lee v. Illinois, U.S. ___, ___, 106 S. Ct. 2056, 90 L.Ed.2d 514 (1986); Miller v. State, 473 So. 2d 945 (Miss. 1985). This right, which is the cornerstone of American justice, was designed "not merely to insure punishment to the guilty, but to insure protection to the innocent, [for without it] every one would hold his liberty at the mercy of the government." Beckwith v. Bean, 98 U.S. 266, ___, 8 Otto 266, ___, 25 L.Ed. 124, 135-36

 (1879) (Field, J., dissenting).

 The right of confrontation is not, however, unbounded. Its contours are shaped so as to accomodate other legitimate interests, Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1083, 35 L.Ed.2d 297 (1973); and it is always subject to the trial court's inherent power to limit cross-examination to relevant factual issues, Johnston v. State, 376 So. 2d 1343 (Miss. 1979). Although the extent of cross-examination is committed to the sound discretion of the trial court, *fn1 Pace v. State, 473 So. 2d 167 (Miss. 1985), that discretion is not without its limits, and this Court has reversed where the trial court has exceeded those limits. Horne v. State, 487 So. 2d 213 (Miss. 1986) (error to prohibit defense counsel from showing, by cross-examination, that law enforcement officer had handled evidence incompetently in the past); Miskelley v. State, 480 So. 2d 1104 (Miss. 1985) ...


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