Before Thomas, P.j., Lee, And Southwick, JJ.
The opinion of the court was delivered by: Thomas, P.j.
DATE OF JUDGMENT: 12/02/1997
TRIAL JUDGE: HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: JEANNENE T. PACIFIC
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTION ON THREE COUNTS OF MANSLAUGHTER AND 20 YRS. SENTENCE ON EACH COUNT TO RUN CONSECUTIVELY.
DISPOSITION: REVERSED AND REMANDED -03/23/99
MOTION FOR REHEARING FILED:
¶1. Billy Wayne Kelly appeals to this Court his conviction of three counts of manslaughter in the Jones County Circuit Court. From that conviction, Kelly was sentenced to serve a term of twenty years on each count with each sentence to run consecutively with the Mississippi Department of Corrections. Feeling aggrieved, Kelly assigns the following issues, taken verbatim from appellant's brief, as error:
I. THE COURT ERRED IN RULING ADMISSIBLE FOR TRIAL THE DEFENDANT'S CONFESSION OF 09-09-96, SINCE THE DEFENDANT TESTIFIED AT THE HEARING THAT THE CHIEF INVESTIGATING OFFICER HAD MADE THREATS AND PROMISES AND THE DA NEVER PUT THE OFFICER ON TO REBUT THE ALLEGATIONS.
II. THE COURT ERRED IN ADMITTING INTO EVIDENCE THE DEFENDANT'S CONFESSION OF 09-09-96, AS THE CONFESSION WAS INVOLUNTARILY GIVEN, AND THE PRODUCT OF PROLONGED POLICE INTERROGATION IN VIOLATION OF THE FOURTH, FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 23 AND 26 OF THE MISSISSIPPI CONSTITUTIONS.
III. WHETHER THE PROSECUTION COMMITTED DISCOVERY VIOLATIONS WHICH GRAVELY PREJUDICED BILLY WAYNE KELLY; AND WHETHER THE COURT ERRED IN NOT GRANTING A CONTINUANCE AND FUNDS FOR THE DEFENSE TO RETAIN A REBUTTAL EXPERT WITNESS.
IV. WHETHER THE PROSECUTORS ELICITED IRRELEVANT, PREJUDICIAL TESTIMONY IN REGARDS TO THE DEFENDANT BEING IN JAIL, OVER OBJECTION.
V. WAS THERE REVERSIBLE ERROR, WHEN THE DISTRICT ATTORNEY, ON CROSS-EXAMINATION OF THE DEFENDANT, ASKED A SERIES OF INFLAMMATORY, IRRELEVANT AND PREJUDICIAL QUESTIONS, REGARDING PRIOR BAD ACTS AND MISCONDUCT, ALL OVER CONTINUING OBJECTION, MANY OF WHICH HAD PREVIOUSLY BEEN RULED INADMISSIBLE, AND MOST OF WHICH WERE ASKED WITHOUT A TIME FRAME, FOUNDATION AND NEVER PROVED?
VI. THE TRIAL COURT ERRONEOUSLY ALLOWED THE ADMISSION OF EVIDENCE OF PRIOR BAD ACTS OF THE DEFENDANT BY THE PROSECUTOR WHOSE PREJUDICIAL EFFECT OUTWEIGHED ANY PROBATIVE VALUE OF THE EVIDENCE.
VII. THE COURT ERRED IN INSERTING INTO THE MANSLAUGHTER INSTRUCTION S-4, S-5, AND S-6, THE ISSUE OF SELF-DEFENSE, A DEFENSE NOT ARGUED BY THE DEFENDANT.
¶2. Finding error, we reverse and remand for a new trial. All assignments of error presented on appeal have merit and will be addressed accordingly.
¶3. On November 7, 1996, Billy Wayne Kelly reported his family missing to the Laurel Police Department at around 5:45 p.m. The persons reported missing included Kelly's wife, Tina, and their two children, two-year-old Erica and four-month-old Christopher. Officer Brian Boutwell of the Laurel Police Department took the report.
¶4. Kelly reported that he and his family, Tina and the two children, were returning home from an eye doctor appointment at around 2:30 p.m. The Kellys decided to first go to Tina's mother's home on 522 West 14th Street. While en route to Tina's mother's home, their family car stalled on 5th Avenue after driving through deep water on 5th Avenue at around 3:00 p.m. The rain storm that afternoon caused torrential flooding in many of the city's drainage creeks causing spillage onto many of the city's streets. Kelly attempted to restart the car but his efforts were to no avail. Kelly advised Officer Boutwell that Tina was afraid of bad weather and was upset that the car had stalled. Kelly further advised Officer Boutwell that Tina wanted to walk with the two children to her mother's house on West 14th Street, which was only a few blocks away from where the car had stalled.
¶5. Kelly advised that he continued to work on the stalled car and that he had not seen them since. At around 4:00 p.m., a passing motorist stopped and helped Kelly pull the car to Tina's mother's home on West 14th Street. According to Kelly, it was then that he discovered Tina and the children were not there. Kelly, with the aid of some friends, began looking for his family but were unsuccessful in locating them. Kelly stated that was when he called the Laurel Police Department.
¶6. While investigating the missing person's report, officers of the Laurel Police Department returned to 5th Avenue and the last known location of the missing persons as provided by Kelly. A search of the area uncovered a baby carrier identified as belonging to Christopher Kelly in the drainage creek near 5th Avenue. The drainage creek ran parallel with 5th Avenue on the west side. Due to the torrential rainfall that afternoon the drainage creek was filled to capacity. There was no sidewalk between 5th Avenue and the drainage creek. Only a green metal barrier separated the West side of 5th Avenue from the drainage creek. A further search of the drainage creek the following morning, Saturday, November 9, 1996, resulted in the discovery of the bodies of Tina and the two children at different distances, covering 3 miles, down the creek from where Kelly had advised that he had last seen his family. Their cause of death was later determined to be freshwater drowning.
¶7. Shortly after the bodies were discovered that morning and after Kelly had been notified, Kelly was taken to the Laurel Police Department at around 12:00 p.m. for an interview. At 12:16 p.m. Kelly was read and he signed a written waiver to his rights. After an approximately ten hour interview, in which Kelly initially denied any involvement in the deaths of his family, Kelly gave a videotaped confession at around 10:00 p.m. that night. A written statement, previously signed by Kelly at a little before 10:00 p.m., was essentially read back to Kelly by Sargent Tony Hosey during the videotaped confession wherein Kelly admitted pushing his wife and two children into the creek after an argument. Kelly admitted that after the car stalled and Tina had set out for her mother's house with the two children, he left the car and caught up with them near the intersection of 5th Avenue and 13th Street. Kelly stated that Tina had crossed over the guard rail to get out of the road and admitted that an argument ensued, wherein, Tina pushed him and he pushed her back sending her and the two children into the swollen drainage creek where they were immediately swept away by the strong current. After these statements and the videotaped confession provided by Kelly, he was arrested, but later released the following day, Sunday, November 10, 1996.
¶8. On November 13, 1996, Kelly was taken to the Office of the District Attorney, Jeannene T. Pacific, where Kelly was further interviewed and essentially gave the same confession he had previously given on November 9, 1996. The November 13, 1996 interview and confession basically followed the same format as the confession obtained on November 9, 1996, wherein an officer read Kelly's previously signed statement to him and then Kelly would basically either answer in the affirmative or in the negative. Kelly again initially denied any involvement in the deaths of the family prior to giving his second confession. Kelly was then rearrested and charged with three counts of manslaughter. The charges were later upgraded to three counts of depraved heart murder. Trial was held on Monday, November 3, 1997; Kelly was convicted of three counts of manslaughter. At trial Kelly disavowed his confession and claimed it was coerced out of him by threats and promises. He claimed to have had no contact with his wife and children after their car broke down and they left for Tina's mother's house on foot; in short, he claimed alibi.
THE COURT ERRED IN RULING ADMISSIBLE FOR TRIAL THE DEFENDANT'S CONFESSION OF 09-09-96, SINCE THE DEFENDANT TESTIFIED AT THE HEARING THAT THE CHIEF INVESTIGATING OFFICER HAD MADE THREATS AND PROMISES AND THE DA NEVER PUT THE OFFICER ON TO REBUT THE ALLEGATIONS.
THE COURT ERRED IN ADMITTING INTO EVIDENCE THE DEFENDANT'S CONFESSION OF 09-09-96, AS THE CONFESSION WAS INVOLUNTARILY GIVEN, AND THE PRODUCT OF PROLONGED POLICE INTERROGATION IN VIOLATION OF THE FOURTH, FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 23 AND 26 OF THE MISSISSIPPI CONSTITUTIONS.
¶9. Kelly assigns error by the trial court in the admission of the confession provided by him on November 9, 1996. Kelly argues that the admission of the November 9, 1996 confession at the suppression hearing was improperly admitted in violation of the procedures set forth in Agee v. State, 185 So. 2d 671 (Miss. 1966). Kelly specifically maintains an Agee violation occurred in the prosecution's failure to secure the presence of all officers present during questioning once he made assertions of police misconduct in obtaining his confession. Kelly additionally argues that the trial court compounded the Agee violation for failing to conduct a subsequent Agee hearing at trial.
¶10. Officers Tony Hosey, Randy Dearman, and Chief Buckahults conducted the interview of Kelly on November 9, 1996 regarding the drowning deaths of Kelly's wife and two children. Kelly's interview began at around 12:00 p.m., and Kelly was read and he signed a written waiver of his rights at around 12:16 p.m. After approximately nine to ten hours of interview with the officers, during which time Kelly initially denied any involvement in the drowning deaths of his wife and two children, Kelly signed a written confession detailing his actions as pertained to their deaths. Kelly further gave a videotaped confession at around 10:00 p.m. that night. During the videotaped confession Kelly essentially answered in either the affirmative or in the negative as the details of his written statement were read back to him by Sergeant Hosey. In that confession Kelly admitted pushing his wife and two children into the creek after an argument.
¶11. At the suppression hearing Kelly testified, in detail, to several instances of police misconduct on the part of Officer Dearman and Sergeant Hosey, which if true, would render his November 9, 1996 confession involuntary and inadmissible.
Q. What did Tony Hosey tell you in there, if anything, about the reason for you to give a statement, if he told you anything.
A. He just told me to give a statement, to make it easier on myself to make a statement to where my wife and two kids could enter into Heaven. He just told me it would be easier on me if I confessed.
Q. Did he tell you it would be easier on you if you confessed?
A. He said that he would try to talk to the DA and get me put in either Whitfield or either East Mississippi.
Q. Now did you at any time during - - from 12:16 to when you were put in jail that night, come into contact with Randy Dearman alone?
Q. Did Randy Dearman ever talk to you in regard to making a statement in this case as to why you should make a statement?
Q. What did Randy Dearman say to you in that regard?
A. Basically the same thing that Tony Hosey did.
Q. And what was that? What's basically the same thing?
A. He told me to go ahead and confess, to make it easier on myself if I confessed it, that he would talk to the DA about getting me put in Whitfield or either East Mississippi.
Q. Whom did you understand to be heading this investigation?
A. I really did not know at that time.
Q. Now anytime from 12:15 until you were taken to the jail, which would be sometime - - for all I can tell - - would have been 20 past 10:00 that evening, were you fed?
A. No, sir, I was not fed until like - - I believe it was like 1:30 or 2:00 o'clock when I got down to the jail and then they fed me there.
Q. Did they offer you any food during that ten - - twelve hours?
Q. Did they tell you at any time that you were free to leave?
A. No, sir, I had the belief that I was under arrest for questioning. That's what my - - that's what was told me, that I had to go down there for questioning.
Q. How did they try and make you confess. Now when you say they, who?
Q. Just give me a name, not just a - - if you can recall.
A. Mainly, Tony Hosey had threatened me. He had told me that if I didn't confess, he would go and get several other officers and come in there and get it out of me.
Q. What about Officer Dearman? I know you mentioned - - I think you said he said it would be better or lighter on you and something about East Mississippi. But did he ever threaten you rather that promise you?
A. He had just - - he got mad at me and told me he ought to knock the "p-h-u-h" out of me. (Indicating)
Q. What about officer - - I'm sorry - - Chief Buckhaults during the time from 3:00 o'clock on? Did he ever make any kind of promises, or threats, or what you took as a - - do you recall any statements he made to you? Let's just put it that way?
A. He just told me that I should go ahead and confess to this to where my two babies and my wife could enter into Heaven, because they were sitting up there wondering why I didn't confess, why I didn't go ahead and say that I done this to where they can go ahead and enter into the gates of Heaven.
Q. And you told him, I understand, that you didn't think that the right to a lawyer meant at the police station, is that correct?
Q. You didn't know that you didn't have a right to a lawyer at the police station; is that correct?
A. No, sir, I did not. I thought I had to wait until I made a court appearance to where they could appoint me one.
Q. And did you at any time ask for a lawyer prior to that?
Q. How many times do you recall and who do you recall asking it to?
A. I believe it was Randy Dearman. I had asked him a couple of times.
Q. And what did he say in reply to that?
A. He just said that I wasn't going to get one right now.
¶12. Of the three officers, Tony Hosey, Randy Dearman and Chief Buckahults, present during the questioning of Kelly on November 9, 1996 only Officer Hosey and Chief Buckahults were present and available for questioning at the suppression hearing. Kelly's specific allegations of police misconduct during the November 9, 1996 interview went unanswered by Officer Dearman at the suppression hearing.
¶13. The proper procedure for proving the voluntariness of a confession has been clearly established in Agee v. State, 185 So. 2d 671 (Miss.1966). The State has the burden of proving the voluntariness of a confession. This burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward. This makes out a prima facie case for the State on the question of voluntariness. When objection is made to the introduction of the confession, the accused is entitled to a preliminary hearing on the question of the admissibility of the confession. This hearing is conducted in the absence of the jury.... [W]hen, after the State has made out a prima facie case as to the voluntariness of the confession, the accused offers testimony that violence, threats of violence, or offers of reward induced the confession, then the State must offer all the officers who were present when the accused was questioned and when the confession was signed, or give an adequate reason for the absence of any such witness.
Agee, 185 So. 2d at 673 (citations omitted). The Agee rule remains a sound principle of law in this State. Thorson v. State, 653 So. 2d 876, 888 (Miss. 1994).
¶14. The requirements of Agee are not automatically fulfilled upon the prosecution's prima facie showing that the elicited confession was freely given and voluntary. Once the State makes a prima facie showing that the elicited confession was freely given and voluntary, further inquiry becomes mandatory "when the accused offers testimony that violence, threats of violence, or offers of reward induced the confession." Agee, 185 So. 2d at 673. In so offering testimony that violence, threats of violence, or offers of reward induced the confession, the accused creates a rebuttable presumption that the State is required to meet by offering all officers present during questioning.
¶15. However, the State is not required to "recall [witnesses] merely to reiterate their earlier testimony" provided in the prosecution's prima facie showing to rebut the accused's testimony that his confession was involuntarily obtained. Sills v. State, 634 So. 2d 124, 126 (Miss. 1994) (quoting Abram v. State, 606 So. 2d 1015, 1030 (Miss. 1992)). Nevertheless, witnesses not called during the State's prima facie showing are required in rebuttal of the accused's allegations that his confession was involuntarily obtained. Once the State made its prima facie showing and upon Kelly's testimony alleging threats of violence, or offers of reward used to induce his confession, "the State must offer all the officers who were present when the accused was questioned and when the confession was signed, or give an adequate reason for the absence of any such witness." Agee, 185 So. 2d at 673. This was not done in the case at hand.
¶16. While it would have been better practice, it was unnecessary to recall Sargent Hosey and Chief Buckahults to "reiterate their earlier testimony." The State was, however, required to call Officer Dearman to testify or provide an adequate reason for his absence at the suppression hearing. The State submits that the reason provided at the suppression hearing for Officer Dearman's absence was adequate under Agee. The district attorney offered the following reason for Officer Dearman's absence at the suppression hearing:
MS. PACIFIC: . . . Randy Dearman is now employed with the DA's office in Brownsville, Texas. And, obviously, for financial reasons and physical reasons, we could not have him here for purposes of this suppression hearing.
¶17. It is well settled that the "adequate reason for absence" exception requires more. See Lettelier v. State, 598 So. 2d 757, 760 (Miss. 1992) (finding officers who no longer lived or worked in the county or were "merely" unavailable does not meet the exception); Powell v. State, 483 So. 2d 363, 369 (Miss. 1986) (finding officer who was attending police school in Louisville, Kentucky was not legally "unavailable" within the meaning of Agee); Kelly v. State, 414 So. 2d 446, 447-48 (Miss.1982) (finding officer who was on vacation in Texas not legally "unavailable"); Miles v. State, 360 So. 2d 1244 (Miss.1978) (finding officer who was on vacation in Arkansas was not legally "unavailable"). But see Turner v. State, 573 So. 2d 657, 664 (Miss. 1990) (finding officer who was absent and unavailable to testify due to his wife undergoing breast cancer surgery and his presence was required with her in Chicago held "adequate reason for absence"). Under the holdings set forth above, the reason provided for Officer Dearman's absence at the suppression hearing fails to meet the required "adequate reason for absence" exception in Agee.
¶18. We recognize, however, that the Agee procedure is not an inflexible rule of law. In Wells v. State, 698 So. 2d 497 (Miss. 1997), the Mississippi Supreme Court addressed a "technical deviation" from the Agee rule on the required preliminary hearing: The purpose of the Agee rule is to protect defendants from the admission into evidence of confessions which were not voluntary. Agee, 185 So. 2d at 673. Naturally, in order to avoid the needless expense and delay of mistrials where confessions are admitted only later to be found involuntary, the suppression hearing should be conducted prior to the admission of the confession into evidence. However, where the trial court admits a confession without a suppression hearing, but nonetheless finds the confession to be voluntary ...