SULLIVAN, JUSTICE, FOR THE COURT:
Cecilia Ann Williamson was indicted and tried for the capital murder of her husband, James Williamson. A jury found her guilty as charged and sentenced her to death. However, because Cecilia Williamson was denied her constitutional right to confront the witnesses presented against her we must reverse and remand the case for a new trial.
James Williamson was brutally murdered in his home outside Oakland, Mississippi, sometime during the early morning hours of March 22, 1982. An autopsy revealed that Williamson was shot in the back at close range with a shotgun and died from massive hemorrhaging and shock caused by the wound. The murderer then doused the home with an accelerant and burned it to the ground.
After a lengthy investigation, the Grand Jury of Yalobusha County returned an indictment on January 27, 1983 *fn1 charging Larry Hentz, Owen Lee Harden, and Cecilia Ann Williamson with the capital murder of James Williamson. The indictment was drawn under 97-3-19(2)(d) of the Mississippi Code Annotated (1972), and charged that Owen
Lee Harden actually committed the murder after conspiring with both Hentz and Mrs. Williamson. The State's theory was that the trio conspired to kill James Williamson with Harden and Hentz to be paid for their participation in the crime out of insurance proceeds collected by Mrs. Williamson upon the death of her husband. The trials of the three were ultimately severed with Mrs. Williamson being tried in Pontotoc County after a motion for change of venue was granted.
At trial, neighbors of Williamson testified that they heard vehicles pull up to the home sometime around 4:00 o'clock a.m. on the morning of the murder. Around 6:00 o'clock a.m., the house was discovered on fire and help was summoned. One neighbor, Marty Langston, testified that he saw Mr. Williamson lying in bed while the house was burning but could not get his attention or enter the home to help him due to the heat and smoke. Additional testimony indicated that Williamson had died as a result of a shotgun wound before the house was set on fire.
The State attempted to establish a motive for the murder by introducing evidence that Mrs. Williamson had secured greater insurance coverage on the home and its contents prior to the fire and murder. Nancy Goodwin, a State Farm Insurance Agent from Water Valley, testified that she issued policies equaling a combined total of some $72,500.00 on the home and its contents even though such policies far exceeded the actual value of the property. Goodwin added that Mrs. Williamson turned down her first offer for insurance and persisted until she issued a higher policy claiming that the property was currently uninsured. Goodwin then stated that Williamson called on at least two occasions prior to the fire to be sure that the policies were in effect. Additional testimony from Jim Maclin and Ron Darby indicated that the property was in fact insured at the time Mrs. Williamson bought additional coverage from State Farm. This was one of the reasons why benefits under the policy were denied.
James Williamson's will was introduced into evidence. It provided that Cecilia Ann was to receive all of James' business assets, insurance proceeds, and all other assets upon his death. She was also to receive 192.5 acres of real property upon the death of James' mother.
The State then offered evidence designed to show that Mrs. Williamson and Larry Hentz had engaged in an adulterous relationship prior to the murder. Elizabeth Smith, a desk clerk at the Holiday Inn in Helena, Arkansas,
identified Mrs. Williamson and a photograph of Larry Hentz. She testified that the two of them had checked in together on at least one occasion and various registration cards from the hotel were introduced to verify other visits by Mrs. Williamson. Joy Hentz, Larry's mother, testified that Mrs. Williamson moved into her home shortly after the murder and that she and Larry were lovers, often sleeping together in her home and traveling to various location for weekend vacations. She noted that James Williamson's gravel equipment was moved to her home and that Larry began to run the business for Cecilia. Mrs. Hentz also testified that Larry and Cecilia kept in contact by phone after Cecilia moved to Arkansas and later to New Orleans.
The State's three key witnesses were Roger Lynn Hentz, Owen Lee Harden, and Michael Johnson. Roger Lynn Hentz, Larry's younger brother, testified that he was an active participant in the murder and then detailed the events leading up to Williamson's murder. *fn2 According to Roger Lynn, he, Larry and Owen Lee purchased a gallon of gasoline earlier in the day on March 21, 1982. Later that night, he and Owen Lee Harden traveled from Pope to Grenada and retrieved Bill Morrow's car. Owen Lee also carried a green garbage bag containing a 12 gauge sawed-off shotgun borrowed from Morrow also. They then drove separate vehicles to the Williamson's home where Roger Lynn slammed the car door to distract the dogs before returning to Grenada to await Harden's return. Bill Morrow verified that he lent both his car and the shotgun to Larry Hentz and also testified that he saw Lee Harden return the vehicle to his hotel in Grenada around 6:30 a.m. on March 22, 1982. For their participation in the murder, Roger Lynn testified that Owen Lee Harden was to receive $10,000.00 and that he was to receive $1,000.00.
Roger Lynn testified that he, Larry, and Owen Lee met with Bill Morrow about a week after the murder and described the crime to Morrow. Bill Morrow acknowledged the incident as well. Roger Lynn also testified that in April 1982, the trio decided that Lee Harden should leave town because local authorities had become suspicious regarding the murder. They then went to Joy Hentz' home to see Cecilia Williamson and Larry spoke with Cecilia and then came out and gave Lee Harden eleven one hundred dollar bills to flee the state.
The State's next witness was Owen Lee Harden. Harden had previously been tried on capital murder charges and was acquitted in July 1983. He informed the court that if called to the stand he would invoke his Fifth Amendment
privilege against self-incrimination because he was currently under indictment for conspiracy to commit murder and arson which arose out of the Williamson murder. The State dismissed the conspiracy to commit murder indictment and the trial judge ruled that any testimony given by Harden could not be used in a subseqent trial against him and thus compelled him to answer all questions posed by the State.
Nevertheless, Harden invoked his Fifth Amendment privilege to each question asked, including questions regarding an alleged confession he made while incarcerated and awaiting trial. This confession was previously ruled inadmissible at his trial because it was taken in violation of his right to counsel. Harden was held in contempt for each denial. The State was allowed to introduce testimony through David Bryant, Sheriff of Panola County, and Vicky Williams, District Attorney Bobby Williams' wife, and each confirmed that Harden had made a confession regarding the murder and had stated that he killed James Williamson, adding that Cecilia Williamson and Larry Hentz were also involved in the murder. According to Sheriff Bryant and Mrs. Williams, Harden also stated that he had received $1100.00 and was to receive an additional $10,000.00 for the murder after the insurance proceeds were recovered. At the close of the trial, the jury was instructed that the testimony offered by Bryant and Williams was to be viewed only for purposes of impeachment.
Finally, the State called Michael Johnson, a former cell-mate of Larry Hentz. Johnson had previously been arrested on charges of receiving stolen property and consented to serve as an undercover agent in exchange for possible leniency on these charges. Johnson contacted Cecilia Williamson while she was living in Gretna, Louisiana, in January of 1982. He asked for and received money from Mrs. Williamson claiming that he knew all the details surrounding the murder and needed the money to get out of state before the police caught up to him. Additionally, Johnson met with Mrs. Williamson at a hotel in Gretna on at least two occasions and testified that during these sessions Mrs. Williamson offered him $10,000.00 to kill Larry Hentz and her mother-in-law in order to avoid prosecution for the murder of James Williamson. Each of these conversations were recorded and played for the jury over the defendant's objections.
After offering additional witnesses to verify the authenticity of the tape recordings, the State rested and Mrs. Williamson offered no evidence in her defense. The jury deliberated less than an hour before returning a guilty
verdict. At the close of the sentencing phase, *fn3 the jury sentenced Mrs. Williamson to death.
On appeal to this Court convictions of capital murder and sentences of death must be subjected to what has been labeled" heightened scrutiny. "Smith v. State, 499 So. 2d 750, 756 (Miss. 1986); West v. State, 485 So. 2d 681, 685 (Miss. 1985). Under this method of review, all bona fide doubts are to be resolved in favor of the accused because" what may be harmless error in a case with less at stake becomes reversible error when the penalty is death. "Irving v. State, 361 So. 2d 1360, 1363 (Miss. 1978); see also, Fisher v. State, 481 So. 2d 203, 211 (Miss. 1985) (quoting Irving). With these principles as our guide, we now proceed to review the various propositions presented to us by the defendant. *fn4
DID THE TRIAL COURT ERR IN ALLOWING OWEN LEE HARDEN TO BE CALLED TO THE STAND?
Under this proposition, Williamson first argues that the trial court erred in allowing Harden to be called as a witness with knowledge that he would invoke his Fifth Amendment privilege because it allowed the State to build its case on inferences that the jury may have drawn from Harden's assertion of his rights. We disagree. In Hall v. State, 490 So. 2d 858 (Miss. 1986), we recognize that a criminal defendant must be allowed to call witnesses to the stand even though those witnesses intend to invoke their privileges against self-incrimination as secured by the Fifth Amendment. Hall, 490 So.2d at 859. The State should also be afforded the same right. However, as we recognized in Hall, the right to call a witness does not diminish that witness' right to invoke his privilege against self-incrimination. The witness may choose to answer only relevant questions or remain silent if his testimony would subject him to potential prosecution. Hall, 490 So. 2d at 859. See Mississippi State Bar v. Attorney L, ___ So. 2d ___ (Miss. No. CM-223, decided July 22, 1987, not yet reported).
In the present case, Harden was under indictment for conspiracy to commit arson at the time he was called to the stand. The charge of arson was so intertwined to the murder of James Williamson that any testimony given by Harden concerning the murder could have been used in
a subsequent trial on those arson charges. Thus, the trial judge erred in compelling Harden to testify in violation of his Fifth Amendment privilege against self-incrimination.
However, were this the only error committed, we would not be required to reverse the conviction. As we noted, the State was not precluded from calling Harden simply because he intended to invoke his privilege against self-incrimination. Further, compelling Harden to testify violated his rights not Williamson's rights. Finally, Harden offered no testimony and instead chose to remain silent on each question. Clearly, had the State only called Harden then Williamson would have no legitimate argument for reversal. However, the State was allowed to call David Bryant and Vicky Williams to testify regarding an alleged confession given by Harden wherein he detailed the events of the murder and implicated Mrs. Williamson as a party to the murder. Williamson now argues that such testimony denied her the right to confront and cross-examine the witnesses presented against her. We agree.
The right of a criminal defendant to confront and cross-examine the witnesses presented against him is secured under both the United States and Mississippi Constitutions. See U. S. Const. Amdt. VI; Miss. Const. Art. III, 26 (1890). These confrontations clauses" are in a sense hearsay rules elevated to constitutional status "designed to prevent the admission of non-confronted out-of-court statements which lack reliability, are not made under oath, and deny the accused defendant the opportunity to cross-examine such a statement so as to test its truthfulness and reliability. Mitchell v. State, 495 So. 2d 5, 8 (Miss. 1986). Confrontation clause problems become even more acute where post-arrest statements made by one of several defendants inculpating one or more of the other defendants is introduced into evidence in proceedings against one of the co-defendants. These accusations are among the least trustworthy of statements, presumptively, though rebuttably, unreliable, and" those most in need of cross-examination under circumstances where the trier of fact had the opportunity to observe the declarant's demeanor. "Mitchell, 495 So. 2d at 11. Recognition of this problem led the United States Supreme Court to hold that the admission of a co-defendant's extra judicial statement that inculpates the other defendant violates the other defendant's Sixth Amendment right to confront witnesses presented against him, even where the trial court gives a cautionary instruction that such evidence is not to be used substantively. Bruton v. U.S., 391 U.S. 123, 136, 88 S. Ct. 1620, 20 L. Ed. 2d 476, 485-86 (1968); see also, Richardson v. Marsh, 481 U.S. ___, 107 S. Ct. 1702,
95 L.Ed.2d 176 (1987); Cruz v. New York, 481 U.S. ___, 107 S. Ct. 1714. 95 L.Ed.2d 162 (1987); Lee v. Illinois, 363 U.S. ___, 106 S. Ct. 2056, 2063-64, 90 L.Ed.2d 514, 526-9 (1986) (reaffirming Bruton); Mitchell v. State, 495 So. 2d 8, 10-11 (Miss. 1986) (following the holdings in Bruton and Lee).
The case at hand differs only slightly from Bruton. In Bruton, the defendants were being tried jointly and statements by one defendant inculpating the other were introduced into evidence. Bruton, 391 U. S. 123, 125, 88 S. Ct. 1620, 1621, 20 L.Ed.2d 476, 478 (1968). In Williamson's case, she and Harden were tried separately. However, such a distinction is minor when one considers the impact of the testimony offered through Sheriff Bryant and Mrs. Williams. This testimony detailed an alleged confession given by Harden while he was incarcerated which clearly implicated Mrs. Williamson as a participant in the murder. They were post-arrest oral statements made without the presence of Harden's counsel and were not made under oath. Further, Harden consistently invoked his Fifth Amendment privilege against self-incrimination and refused to answer any questions regarding the confession. Thus, Williamson was effectively prevented from conducting a meaningful cross-examination of the declarant (Harden) in violation of her constitutionally protected rights. Although Williamson was permitted to cross-examine both Bryant and Williams concerning the circumstances under which the confession was given, this can hardly be said to constitute a substitute for a meaningful cross-examination of the declarant himself. In short, the admission of this testimony denied Williamson her constitutional right to confront and cross-examine the witnesses presented against her.
Nevertheless, the State attempts to persuade us that this evidence was properly admitted to impeach the testimony given by Harden. In both their brief and at oral argument, the State points to the following exchange during the direct examination of Harden:
Q. Did you kill James Williamson?
A. At this time a Jury has already found - decided that, and other than that I take
From this, the State argues that Harden's response opened the door to the introduction of the testimony offered by Sheriff Bryant and Mrs. Williams for the purposes of impeaching his credibility.
The State's argument can be summed up in a word wrong. When Harden stated that a jury had previously decided whether he had killed James Williamson, that statement was accurate and truthful. He had previously been acquitted at his trial on the capital murder charges stemming from the murder of James Williamson. Apparently then the State was attempting to impeach the truth. We know of no authority and doubt whether any can be found wherein truthful statements are held to be impeachable. Further, Harden's assertion of his privilege against self-incrimination concerning the alleged confession did not constitute a denial by silence as to whether the confession was ever made. Harden simply refused to answer these ...