The opinion of the court was delivered by: McRAE, Justice, For The Court:
ON PETITION FOR WRIT OF CERTIORARI
DATE OF JUDGMENT: 12/16/94
TRIAL JUDGE: HON. JERRY O. TERRY
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
MOTION FOR REHEARING FILED:
¶1. Melissa Garrison was found guilty of murdering her mother, Betty Garrison, by a jury of the Harrison County Circuit Court on December 2, 1994. Her conviction was affirmed by a plurality of the Court of Appeals on May 20, 1997. The Court of Appeals found that the lower court properly allowed into evidence the guilty plea transcript of her older sister and co-conspirator, Shannon Garrison. Garrison now appeals that decision to this Court. We find that the Court of Appeals erred in affirming the circuit court's rulings that Shannon Garrison's guilty plea transcript was admissible, that certain testimony of co-conspirator Allen Goul was properly excluded, and that none of the testimony of clinical psychologist, Dr. Joseph Tramontana, who treated Melissa Garrison both before and after the murder, was admissible. While Garrison did not meet her burden of showing that Judge Terry's familiarity with the case warranted his recusal, we find that a specter of impartiality was raised by his comments during earlier proceedings that he believed that both Melissa and Shannon Garrison, as well as Allen Goul, were guilty and that he believed Shannon's testimony at her plea. We reverse and remand the case to the Harrison County Circuit Court for a new trial consistent with this opinion.
¶2. Betty Garrison, the divorced mother of two teenage daughters, was murdered in her bedroom in the early morning hours of July 7, 1992. Her two daughters, Shannon and Melissa, along with Allen Goul, a neighbor and Melissa's boyfriend, were accused of the murder. Melissa admitted that she witnessed her mother's murder, but denied any participation. While she admitted making derogatory comments about her mother to Goul, she denied that she ever seriously considering killing her.
¶3. There was some evidence that both girls had asked Goul to kill their mother, and that, ultimately, it was Goul who planned the murder. On the day of the murder, Goul sent a note addressed to Shannon and Melissa, outlining "instructions step by step," including the disposal of the body. There was a second note addressed to Melissa telling her "Tonight! Open the window at 2:30 or keep a look out for me walking on the street. I may be a little earlier. Be ready, O.K." The notes were left at the Garrison home in a cassette tape case which Betty gave to Melissa around 8:00 p.m., after they returned from a family therapy session. Both notes later were found in the pockets of the shorts Melissa was wearing when she was taken into custody.
¶4. Goul testified that when he arrived at the Garrison home early that morning, he asked Melissa if she was sure she "wanted this done." Melissa allegedly responded by saying that Shannon was waiting in their mother's bedroom. Melissa denied this, stating that she followed Goul to her mother's bedroom without knowing his intent. Shannon was already in her mother's room when Goul entered. On his instruction, Shannon placed a pillow on her mother's face. A struggle ensued, during which Goul stabbed Betty Garrison a number of times with a knife he brought with him and began to strangle her. Goul testified that during the struggle, Melissa yelled, "Is she dead yet? Kill her! Shut her up." According to Goul, while Melissa and Betty were screaming, Shannon whispered to her mother, "Mother, you're to die."
¶5. After they were satisfied that Betty was dead, the trio left the home on foot, disposed of the knife and various articles of clothing, and went to a friend's house. They got a ride back to the Garrison home and took the family car to find Shannon's boyfriend, Michael Brewer. Brewer later testified that it was he who suggested that they should make it appear that Betty had been killed during a robbery.
¶6. After dropping the boys off in a nearby alley, the girls returned home and called 911, reporting that the house had been robbed and their mother had been injured. When the police arrived, they immediately became suspicious of Goul, whom they had spotted outside with a number of scratches on his neck and chest.
¶7. Melissa and Shannon Garrison, along with Allen Goul, were indicted for murder by a grand jury of the Harrison County Circuit Court. Shannon and Goul ultimately entered guilty pleas. Prior to accepting her guilty plea, the court asked Shannon to give her version of the events leading up to and including July 7, 1992. Shannon's testimony went to great lengths to shift as much of the blame as possible to primarily Goul as well as to Melissa. At Melissa's first trial, Shannon, who already had entered a guilty plea, apparently was not called as a witness. That trial ended in a hung jury. By the time of Melissa's second trial, Shannon was trying to withdraw her guilty plea. She refused to testify, invoking her fifth amendment rights. No attempts were made at this trial to introduce Shannon's plea transcript. This trial also ended in a mistrial. At Melissa's third trial, Shannon took the stand briefly while the District Attorney attempted to ascertain whether she was "taking the fifth." No questions were asked and the plea transcript was not offered into evidence. At the fourth trial, Shannon again was called and invoked her fifth amendment rights. Despite threats of contempt, she refused to testify. The prosecutor then was allowed to read the plea transcript to the jury. Contemporaneous hearsay objections by the defense were overruled. This time, Melissa was found guilty and sentenced to life in prison. II.
¶8. The Court of Appeals ruled that the circuit court properly admitted the transcript of Shannon Garrison's guilty plea as an exception to the hearsay rule pursuant to Miss.R.Evid. 804(b). We disagree. Admission of the transcript violated Melissa Garrison's sixth amendment confrontation rights and is contrary to our holdings in ...