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Fontaine v. State

Court of Appeals of Mississippi

March 13, 2018


          DATE OF JUDGMENT: 11/04/2011





         EN BANC

          GREENLEE, J.,

         ¶1. On November 3, 2011, a jury in Forrest County Circuit Court found Michael Fontaine guilty of burglary of a nonresidential dwelling and conspiracy to commit burglary of a nonresidential dwelling. Fontaine appeals claiming (1) the circuit court erred by not allowing the full audio-recorded polygraph interview to be played when the State played a two-minute excerpt; (2) the circuit court erred in excluding the affidavit of a deceased co-defendant; (3) prosecutorial misconduct denied Fontaine a fair trial; (4) insufficient evidence supported the verdicts; and (5) the verdicts were against the overwhelming weight of the evidence. Finding no error, we affirm.


         ¶2. On June 23, 2010, Petal Police Department Officer Rick Varner responded to a burglary call at a local trailer park. Upon arrival, Officer Varner spoke with William Cooley, who explained that he and his wife were in the process of moving and that his trailer had been burglarized. William showed Officer Varner the window that the perpetrator used to enter his trailer and, at the request of Officer Varner, listed the items that were stolen: rods and reels, NASCAR collectibles, several CDs, DVDs, and bow and arrows.

         ¶3. Petal Police Department Investigator Kevin Bullock was dispatched to further investigate the scene along with Officer Varner. The officers, receiving information that the stolen items might be in another trailer at the same park, walked over to that trailer, which was owned by Mark Walker. Arriving at the trailer, the officers were met by Walker, his girlfriend Aundrea McDaniel, and his co-worker Fontaine. After obtaining Walker's consent to search the trailer, the officers asked if there was any hunting or fishing equipment in the trailer about which they needed to know. Fontaine responded that there was a child's "Snoopy rod and reel" that he had bought for his kid.[1]

         ¶4. The officers proceeded to enter the trailer and found several of the items reported as stolen on the den's floor in plain view. Further, the officers observed additional items reported as stolen in Walker's living room and the Fontaines' bedroom. Upon entering the Fontaines' bedroom, Officer Varner observed a partially open closet and looked inside it, revealing two BB guns that allegedly were stolen. Additionally, after removing a mattress that was wedged behind the closet door, Officer Varner found several rods and reels, a Browning bow and arrows, NASCAR items, and a large bag containing CDs and movies. After completing their search, the officers took the Fontaines, Walker, and McDaniel into custody.

         ¶5. After reading Fontaine his Miranda rights, [2] Officer Varner placed Fontaine inside the back of his patrol car. According to Officer Varner, when Detective Bullock walked out of Walker's trailer with rods and reels, Fontaine claimed they belonged to his brother Tony Fontaine. However, at Fontaine's trial, Tony testified otherwise.

         ¶6. After being taken into police custody, Fontaine provided a written statement explaining his whereabouts on the day of the burglary. According to his written statement, Fontaine got home from work at approximately 3:33 p.m. and took a bath. The statement further explained that he heard a noise and saw Walker carrying a "basket of something." Fontaine then returned to his room, took a nap until 4:30 a.m., and went to work.

         ¶7. On May 16, 2011, a grand jury indicted Fontaine as a habitual offender on one count of burglary of a nonresidential dwelling and one count of conspiracy to commit burglary of a nonresidential dwelling. Fontaine's trial was set for November 2, 2011. Several days before trial, Fontaine filed a notice of intent to introduce as evidence an affidavit from Walker, who recently had died. In this affidavit, executed on January 6, 2011, Walker denied that Fontaine was present when the burglary occurred. Instead, Walker claimed that he was the only person in Cooley's trailer. The State filed a motion in limine to prevent Fontaine from introducing Walker's affidavit at trial. Following a hearing, the circuit court found the affidavit was pure hearsay and untimely. The circuit court granted the State's motion to exclude the affidavit from evidence.

         ¶8. At Fontaine's trial, McDaniel testified for the State and said that she met with Fontaine and Walker in the kitchen of Walker's trailer to discuss going into "[Cooley's] trailer and take some things." Further, she testified that when they went down to the trailer they tried to go through the front door, but it was locked. So they went to the back of the trailer where Walker went through a window and then opened the front door for her and Fontaine. McDaniel stated that once inside Cooley's trailer, they began "gathering stuff up in a big 'ol blue tote" and started hauling it down to Walker's trailer. She explained that they made two trips to Cooley's trailer to collect "stuff, " which included DVDs from the living room, a Dale Earnhardt plaque, bow and arrows, and rods and reels from the bedrooms. Finally, McDaniel testified that the next day, she and Fontaine's wife Miranda hid the stolen items in the bedroom closets of Walker's trailer.

         ¶9. The State's next witness to testify was David Clayton, a polygrapher retained by defense counsel who interviewed Fontaine prior to trial. During his testimony, the State moved to introduce a two-minute portion of his interview with Fontaine into evidence. Counsel for Fontaine objected to the introduction of the two-minute excerpt on the grounds that the circuit court should admit the remainder of Fontaine's audio-recorded polygraph interview instead of just the excerpt. The judge, overruling the defense's objection, allowed the two-minute excerpt to be played. Counsel for Fontaine, who had control of the audio-recorded interview, never proffered the remainder of the recording.

         ¶10. As admitted into evidence, the two-minute audio-recorded excerpt reveals a conversation between Fontaine and Clayton where Fontaine tells Clayton his whereabouts on the day of the alleged burglary. During this conversation, Fontaine explains that his wife was interested in looking at Cooley's trailer and as a result went with Walker and McDaniel to look at it. Fontaine claimed that they only looked inside the trailer windows but also said he awoke later that night to Walker returning with a big blue bag. Further, Fontaine stated that the next day Walker mentioned he had a signed Dale Earnhardt picture. Fontaine also claimed that he overheard part of a phone conversation in which Walker and McDaniel discussed "putting something somewhere[.]"

         ¶11. The jury also heard testimony from Kimberley Cooley, the co-owner of the burglarized trailer. She testified that she recently overheard a conversation between Fontaine and his bail bondsman.[3] She explained that Fontaine told his bondsman that McDaniel allegedly had called the Cooleys and received permission to enter their trailer. Fontaine also purportedly told the bondsman that he entered the Cooleys' trailer with his wife, Walker, and McDaniel, and then the four of them transported the Cooleys' stolen property to Walker's trailer. She testified that Fontaine asked his bondsman if he could apologize to the Cooleys. Kimberly testified that upon hearing these comments she reported them to the police. She also testified that neither she nor her husband ever gave the Fontaines, Walker, or McDaniel permission to enter their trailer.

         ¶12. During the defense's case-in-chief, Fontaine's wife Miranda was called to testify about the day of the burglary. She testified that she went to a doctor's appointment, where she was prescribed medication for migraines. She further explained that on the day of the incident, she returned from her doctor's appointment, took her migraine medication, and fell asleep until the next morning. Further, she denied seeing any of the stolen property in Walker's trailer and had no recollection of what happened. She explained that while her family rented a bedroom in Walker's trailer, they used only one of the two closets because the other closet contained Walker's mother's possessions and was off limits.

         ¶13. Fontaine also testified on his own behalf and denied participating in the burglary. Fontaine stated that on the night of the burglary, he was walking his daughter over to her friend's house to spend the night when they came upon Walker and McDaniel. According to Fontaine, McDaniel pointed out the Cooleys' trailer as the one his wife wanted to rent. He testified that he briefly walked over to the trailer but soon left returning to walk his daughter to her friend's home. Fontaine further testified that, upon returning to Walker's trailer, he spoke with McDaniel about the Cooleys' trailer, explaining to her that he did not really get a chance to look at it. According to Fontaine, McDaniel told him that she would make some calls and gather information about the trailer.

         ¶14. That night, according to Fontaine, he continued his usual nighttime routine until his homesick daughter returned home. As he was about to go back to sleep, Fontaine testified that he heard a noise and saw Walker returning to the trailer with a large blue tote. The next day, Fontaine stated that he was at dinner with Walker when Walker told him that he had a Dale Earnhardt picture. Fontaine testified, however, that he knew Walker did not own such an item and that he had a "good idea" it was stolen.

         ¶15. After considering the evidence in the case, the jury found Fontaine guilty of both burglary of a nonresidential dwelling and conspiracy to commit burglary of a nonresidential dwelling. Accordingly, the circuit court sentenced him to seven years for burglary of a nonresidential dwelling and a consecutive five-year sentence for conspiracy to commit burglary of a nonresidential dwelling.

         ¶16. On November 14, 2011, Fontaine filed a motion for judgment notwithstanding the verdict or, in the alternate, a new trial, which was denied. Aggrieved, Fontaine appeals.


         I. Whether The Circuit Court Erred When It Permitted The State To Introduce A Two-Minute Segment Of Fontaine's Recorded Statement Without Allowing The Remainder Of The Recording Into Evidence

         ¶17. This Court applies an abuse of discretion standard of review when considering a trial court's admission of evidence. Cooper v. State, 200 So.3d 1065, 1074 (¶32) (Miss. Ct. App. 2016). Under this standard, "[t]he trial judge has ample power in his sound discretion to limit the introduction into evidence of those portions of the recording which are relevant and material." Sanders v. State, 237 Miss. 772, 777, 115 So.2d 145, 147 (1959). "For a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party." Harrell v. State, 179 So.3d 16, 18 (¶9) (Miss. Ct. App. 2014).

         ¶18. Fontaine argues that the circuit court erred by overruling his objection and refusing to admit the entire audio-recorded polygraph interview after the State moved to admit a two-minute excerpt. He asserts that the State took the excerpt out of context, and he contends "[he] was, in fairness, entitled to present and have the jury consider the remainder of the interview under the Rule of Completeness." However, Fontaine's failure to proffer the full audio-recorded polygraph interview leaves this Court without the ability to assess whether the trial judge abused his discretion in not admitting the whole interview. Without the whole audio-recorded polygraph interview, not only has Fontaine failed to preserve the issue on appeal, but also this Court cannot evaluate the interview's evidentiary value or make any determination as to whether or not the trial court committed any error.

         ¶19. In Mississippi, the Supreme Court has made it clear that "[appellate courts] adhere to the rule that a record proffer of excluded testimony must be made to preserve the point for appeal." Thompson v. State, 602 So.2d 1185, 1188 (Miss. 1992). Further, in Barron v. State, this Court reaffirmed the necessity of a proffer being made at the trial court level to preserve the issue for appeal, stating that "before we will consider the matter on appeal the party must have somehow placed in the record the nature and substance of the proffered evidence for our consideration." Barron v. State, 130 So.3d 531, 539-40 (ΒΆ32) (Miss. Ct. App. 2013). Therefore, while the record clearly indicates Fontaine objected to the State's introduction of just the two-minute segment of ...

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