(the Mississippi Rules of Evidence having become effective January 1, 1986) and, therefore, Rule 615 (exclusion of witnesses) of the Mississippi Rules of Evidence was in effect. At that time the rule which existed prior to January 1, 1986, ceased to have effect and this Court contemplated none, else it would have said so in its order adopting the Mississippi Rules of Evidence.
The facts of the case are amply set forth in the majority opinion.
Rule 615 (exclusion of witnesses) provides as follows:
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
Sheriff Russell was not excepted from the rule pursuant to 615(1) as he is not a party who is a natural person; not excepted pursuant to Rule 615(2) because he was not an officer or employee of a party which is not a natural person designated as its representative by its attorney, not excepted under Rule 615(3) because he was not a person whose presence was shown by a party to be essential to the presentation of his cause. Then, why was he permitted to testify when admittedly he sat through the entire trial and on rebuttal was able to testify over the objections of the defendant. The sheriff as set forth in the majority opinion, offered rebuttal testimony, over the timely objection of defense counsel, about a key issue in the trial, that is whether the broken window was up or down when he first investigated the crime scene. He bolstered, then, the testimony of a deputy sheriff and his testimony was prejudicial to defendant. The majority opinion sets forth sound and persuasive reasons for this case to be reversed and remanded, then affirms. I would hold that if it had been necessary that the sheriff stay in the courtroom to preserve order then he should not be a witness but should he be essential as a witness then he should not be the one to maintain order in the courtroom. The comments under our Rule 615 provide that" in each instance the person's presence must be shown by a party to be essential to the presentation of his case. "No such allegation or showing was hinted at here.
As though letting Sheriff Russell testify were not enough, the trial court permitted three rebuttal witnesses to testify in violation of Rule 615 in that the three witnesses all stated that the district attorney had told them the substance and details of the testimony of other witnesses. This is a blatant violation of the purpose of Rule 615. It does no good to sequester witnesses if someone (in this case the district attorney, an officer of the court) is going to repeat the testimony to them of other witnesses. It was held in the case of United States v. Johnston, 578 F.2d 1352 (C.A. 10th, 1978) that a circumvention of the Rule requiring exclusion of witnesses upon request occurs when witnesses defeat the Rule's purpose indirectly by discussion of testimony they have given and events in the courtroom with witnesses who are about to testify. This should be avoided by instructions to counsel and the witnesses at the time of the Rule's invocation by a party is announced. The court further stated that the court should make clear that witnesses are not only excluded from the courtroom but also that they are not to relate to other witnesses the substance of their testimony or what occurred in the courtroom. In the case sub judice the district attorney was guilty of a circumvention of the rule and this is prohibited. The purpose of sequestering witnesses has long been recognized as a means of discouraging and exposing falsification, inaccuracy, and collusion. See Comments under our adoption of Rule 615. I am not impressed whatsoever by the State's answer that it was merely" prepping "them to testify.
Taken together, there were four separate and distinct serious violations of Rule 615 allowed over the objection of the defendant to occur. Enough is enough.
The defendant did not receive a fair trial and as the majority opinion properly states," a fair trial and the ends of justice will be best served by the strict enforcement of the Rule "(Rule 615).
I would reverse and remand for a new trial with admonition to the trial court to carefully read and enforce Rule 615 of the Mississippi Rules of Evidence.
ROBERTSON AND SULLIVAN, JJ., CONCURS.