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Slater v. State

January 14, 1999

CHRISTOPHER DERAY SLATER
v.
STATE OF MISSISSIPPI



Before Pittman, P.j., Smith And Mills, JJ.

The opinion of the court was delivered by: Pittman, Presiding Justice,

DATE OF JUDGMENT: 5/6/97

TRIAL JUDGE: HON. ANDREW CLEVELAND BAKER

COURT FROM WHICH APPEALED: TATE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 1/14/99

STATEMENT OF THE CASE

¶1. The appellant, Christopher Deray Slater (hereinafter Slater) was indicted on July 11, 1996, by a Tate County, Mississippi, grand jury for murder and aggravated assault in violation of Miss. Code Ann. §§ 97-3-19(1)(a) and 97-3-7(2)(b). The case was tried on April 14-17, 1997, the Honorable Judge Andrew C. Baker presiding. After due deliberation the jury found Slater guilty of murder and not guilty of aggravated assault. Slater was sentenced to life in the custody of the Mississippi Department of Corrections. Post-trial motions were heard and denied by the trial court. Slater timely noticed this instant appeal.

STATEMENT OF THE FACTS

¶2. Slater and two friends armed themselves and went driving around on Saturday, March 2, 1996. They spotted a car belonging to someone they wanted to catch up with and talk to. Slater followed this car up Highway 51 and then passed the victim's car, turned around in the highway ahead of the victim's still moving car, thereby forcing the victim's car to stop or else hit Slater's car - effectively sitting sideways across the highway. Slater then pulled alongside the victim's car, now stopped in the highway, and both Slater and one of Slater's passengers began shooting into the victim's stopped car. Chester Newson, the victim, was struck in the head by one of the bullets fired by either Slater, or his co-indictee, Frank Howard, and died. ¶3. In this appeal, Slater raises three assignments of error. They are as follows:

I. THE TRIAL COURT'S EXCLUSION OF HOWARD'S SPONTANEOUS CONFESSION THAT HE HAD KILLED SOMEONE, DENIED SLATER A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS, BY DEPRIVING HIM OF THE ONLY EVIDENCE AVAILABLE TO SUPPORT HIS TESTIMONY THAT HOWARD KILLED CHESTER NEWSON AFTER HE HIMSELF HAD ABANDONED ANY CRIMINAL INTENT AND STARTED TO LEAVE THE SCENE.

II. THE COURT'S REFUSAL TO INSTRUCT THE JURY ON ABANDONMENT AND ON ACCESSORY AFTER THE FACT DEPRIVED HIM OF HIS RIGHT TO HAVE HIS THEORY OF DEFENSE SUBMITTED TO THE JURY IN VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS.

III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT CONSTRUCTIVELY AMENDED THE INDICTMENT, IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS, BY INSTRUCTING THE JURY ON "DEPRAVED HEART" MURDER WHEN THE INDICTMENT ONLY ACCUSED CHRIS OF "DELIBERATE DESIGN."

LEGAL ANALYSIS

I. THE TRIAL COURT'S EXCLUSION OF HOWARD'S SPONTANEOUS CONFESSION THAT HE HAD KILLED SOMEONE, DENIED SLATER A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS, BY DEPRIVING HIM OF THE ONLY EVIDENCE AVAILABLE TO SUPPORT HIS TESTIMONY THAT HOWARD KILLED CHESTER NEWSON AFTER HE HIMSELF HAD ABANDONED ANY CRIMINAL INTENT AND STARTED TO LEAVE THE SCENE.

¶4. In this case, Frank Howard, a co-indictee not on trial here, had previously made a statement which was overheard by Darrell Goins. Slater's defense counsel wished to have Darrell Goins testify in this case as to what he heard Frank Howard say. The State objected to this testimony as being inadmissible hearsay evidence. Slater argued that this testimony was admissible hearsay under Miss. Rules of Evidence 804(b)(3).

¶5. The State argued that this testimony was not admissible under M.R.E. 804(b)(3) because Frank Howard had not been subpoenaed by Slater to testify. The State conceded that it was possible that Frank Howard would assert his Fifth Amendment right against self-incrimination and refuse to testify, but until he was called upon to testify, he was not unavailable to testify as required by M.R.E. 804(b)(3).

¶6. This Court held in Baine v. State, 606 So.2d 1076, 1078 (Miss. 1992), that "[u]nder this Court's standard of review, the admissibility of evidence rests within the trial court's discretion." Id. (citing Wade v. State, 583 So.2d 965, 967 (Miss. 1991)). The trial Judge found that the statement did not fall into the M.R.E. 804(b)(3) exception or any other hearsay exception. Slater was then allowed the opportunity to make a proffer of what Darrell Goins' ...


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