The opinion of the court was delivered by: Sullivan, Presiding Justice
ON PETITION FOR WRIT OF CERTIORARI
DATE OF JUDGMENT: DABNEY - 10/06/94 AND PHALO - 09/30/94
TRIAL JUDGE: HON. WILLIAM F. COLEMAN
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: ED PETERS
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION REVERSED AND REMANDED
¶1. Moses Dabney, III and Jason Phalo were indicted by the Hinds County Grand Jury in April 1994 for the murder of Eddie Wilson, Jr. Dabney and Phalo were tried together in September 1994, and each was convicted of murder and sentenced to life imprisonment. Dabney's and Phalo's appeals were assigned to the Court of Appeals, which affirmed in both cases. Dabney and Phalo separately petitioned this Court for certiorari, which were granted. After consideration we find that both convictions must be reversed and remanded for further proceedings.
¶2. On December 31, 1993, Jason Phalo, Moses Dabney, III and two other individuals were riding around Jackson. Late that afternoon they were headed south on I-55 west frontage road when they pulled into the parking lot of Cowboy Maloney's Electric City. Phalo spotted a white Chevrolet Blazer in the parking lot, which he proceeded to break into with a screwdriver and steal. Phalo drove off in the Blazer followed by the car occupied by Dabney and the other two individuals. The Blazer belonged to Eddie Wilson, Jr., an employee of Electric City. Wilson saw his Blazer being driven away and asked a co-worker, Tye Carney, to get his car so that they could follow the Blazer.
¶3. Wilson and Carney followed the Blazer as it headed south on the frontage road, then turned right onto Northside Drive and headed west toward North State Street. The Blazer then stopped at the intersection of Northside and North State. At this time Moses Dabney got out of the trailing car and got into the Blazer on the passenger side. Carney pulled his vehicle in front of the Blazer to block it from going any further. Wilson got out of Carney's car, ran to the driver's door of the Blazer and attempted to open it. Wilson then attempted to run back to Carney's car as shots were fired from the Blazer. Witnesses differed as to which of the occupants of the Blazer was shooting. Moses Dabney was in possession of one pistol, a.380 semiautomatic, at the time of the theft of the Blazer, and Wilson's pistol, a.38, was also in the stolen Blazer. Jason Phalo and Moses Dabney departed the Blazer and ran from the scene. Wilson was hit in the back and died a short time later. Phalo and Dabney were tried together. Both were convicted of murder and received life sentences. Both of their appeals will be discussed in this opinion.
¶4. One of the witnesses to the shooting stated that one of the persons in the Blazer wore a plaid shirt. Counsel for Jason Phalo introduced a plaid shirt into evidence at trial. Phalo's counsel elicited testimony from Jackson Police Officer Clidell Conston that Conston had obtained the shirt from Jason Phalo's mother, that Dabney had changed clothes at Phalo's house on the day of the shooting, that Conston then discussed the shirt with Moses Dabney on January 9, 1994, and that Dabney stated that he was wearing the plaid shirt on the day of the shooting. Dabney moved to suppress the statement prior to trial, alleging that he was mildly retarded and a special education student, and he could not have understood his rights sufficiently to voluntarily waive them. The circuit court heard testimony concerning Dabney's mental status from two of his teachers and a psychologist. The police officers that read Dabney his rights and took his statement also testified. The circuit court found that the State had met its burden of proof as to the voluntariness of the statements.
¶5. At trial only Dabney's statement as to the plaid shirt was introduced, and this was done by Phalo. Dabney sought to introduce at trial much of the evidence that he had introduced at the pre-trial hearing on his mental capabilities. The circuit court granted the State's motion to exclude the evidence, but stated that Dabney could call his teachers as character witnesses. Dabney was able at trial to cross-examine Officer Conston as to the circumstances surrounding the statement, including Dabney's age, whether his parents or attorney had been called before he made the statement, and whether Conston had determined that Dabney was a special education student. Dabney called at trial as character witnesses the same two teachers who had testified earlier in the pre-trial hearing on admissibility. These witnesses identified themselves during their testimony as special education teachers or teachers of exceptional students.
¶6. Dabney cites Cole v. State , 525 So.2d 365, 368 (Miss. 1987), which states that once the trial court has admitted a confession into evidence, it is still within the province of the jury to determine whether the statement is true and voluntary, and what weight and credibility should be accorded to it. Wilson v. State , 451 So.2d 724 (Miss. 1984); Rhone v. State , 254 So.2d 750 (Miss. 1971). Thus, once a confession has been admitted, "either party has a right to introduce before the jury the same evidence which was submitted [at the suppression hearing] as well as any other evidence relative to the weight and credibility of the confession." Rhone , 254 So.2d at 754.
This Court found in Cole that defense counsel was able to substantially make his argument concerning the confession before the jury and there was no reversible error.
¶7. The State argued before the Court of Appeals that the statement in question was never taken up in the pre-trial suppression hearing and that evidence of Dabney's mental state was irrelevant. A review of the record contradicts this. We find that Dabney was improperly restricted in his attempt to demonstrate that the jury should accord little weight or credibility to his statement because of his mild retardation. This is not to say that all the evidence which Dabney introduced at his pre-trial suppression hearing is automatically admissible at trial. We recognize that as to the admission of evidence, a pre-trial hearing will often be a more relaxed setting than a trial. While the rule in Cole is controlling here, the restrictions found in the Rules of Evidence also apply to any evidence which Dabney may attempt to introduce at trial, including the evidence in question here.
¶8. Dabney requested instruction DD-6, which was refused based on the objection of Phalo, Dabney's co-defendant: The Court instructs the Jury that the law does not compel the defendant in a criminal case to take the witness stand and testify, and no presumption ...