DATE OF JUDGMENT: 04/15/94 TRIAL JUDGE: HON. L. BRELAND HILBURN, JR. COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
The opinion of the court was delivered by: Sullivan, Presiding
ON PETITION FOR WRIT OF CERTIORARI
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION REVERSED AND REMANDED - 3/12/98
MOTION FOR REHEARING FILED:
¶1. McKinley Owens was indicted on June 11, 1993, by the Hinds County Grand Jury for sale of cocaine as a habitual offender. Owens was convicted after a trial in April 1994 and was sentenced to thirty years in the custody of the M.D.O.C. as a habitual offender. Owens's appeal was assigned to the Court of Appeals, which affirmed his conviction and sentence by a vote of 7-3. Owens's petition for writ of certiorari raised the issues of whether the admission of a statement of an alleged accomplice of Owens's was erroneous under the Mississippi Rules of Evidence and whether it was in violation of Owens's rights under the Confrontation Clause. After consideration we find that the statement was erroneously admitted and Owens's conviction must be reversed and remanded.
¶2. On May 21, 1993, Jackson Police Department Detectives Larry Iles, Alvaleen Baggett, and Preston Carter planned to make a purchase of cocaine from McKinley Owens at Hawkins Field in Jackson. The police arranged for Albert Odom, who had drug charges pending against him, to make the buy. Odom set up the buy by calling Robert Dent, who allegedly served as an intermediary for McKinley Owens. Odom went to the buy wearing a body wire and bearing $500 supplied by the police and approximately $25 of his own. Odom met with Dent and they traveled in the same car to Hawkins Field, with the police providing surveillance.
¶3. McKinley Owens allegedly arrived at the Field at around 7:00 p.m. in a Mercedes automobile. At that time Odom stated that he gave the money to Dent, who got out of that vehicle and got into the Mercedes. According to police witnesses the two men in the Mercedes were passing objects back and forth. The police decided at this time to make an arrest, but the Mercedes eluded them and departed at a high rate of speed, with Robert Dent still inside. At some point during the ensuing chase Robert Dent jumped or was ejected from the still moving Mercedes. When Dent was apprehended he was in possession of a quantity of crack cocaine, but no money. The Mercedes and its occupant got away. McKinley Owens subsequently surrendered to the police. Detectives Iles, Baggett and Carter, as well as Albert Odom, identified McKinley Owens at trial as the driver of the Mercedes. Owens's alibi was that he wasn't at Hawkins Field at the time in question, and that his car was actually being driven at the time by Wayne Vancleave, who did some air conditioning work at apartments owned by Owens. Vancleave testified that he was the man in the Mercedes at the time in question and he was trying to buy some marijuana from Robert Dent. Detective Iles testified without objection that "McKinley is a light complected, forty year old black male, and Wayne Vancleave is a early twenties white male."
¶4. During its direct examination of Detective Larry Iles, the State informed the court that it intended to introduce Robert Dent's statement to Iles to the effect that McKinley Owens had pulled a pistol during the chase and told Dent that he would shoot Dent, so Dent jumped out of the car. In this statement Dent further related his dealings with Al Odom in setting up the drug sale, including calling Owens on his cellular phone. Police later used the number Dent gave them to contact Owens the same way. This statement was made by Dent to the police at the Vice and Narcotics Office of the Jackson Police Department approximately an hour after the actual event. The assistant district attorney stated twice to the circuit court that he offered the statement as an exception to the hearsay rule under M.R.E. 803(2). Defense counsel objected. The circuit court overruled the objection. Later during the trial counsel for Dent informed defense counsel that he would take the Fifth Amendment if called, so the defense counsel announced that he would not call Dent as a witness.
¶5. The Court of Appeals found that the circuit court did not err in allowing Dent's statement to be admitted as evidence. The Court of Appeals further found that where the statement was admitted under a clear and "firmly rooted" exception to the hearsay ...