OF JUDGMENT: 11/04/2011
COUNTY CIRCUIT COURT HON. ROBERT B. HELFRICH TRIAL JUDGE.
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
JOSEPH SCOTT HEMLEBEN
DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL
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.
AND PROCEDURAL HISTORY
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.
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
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
After reading Fontaine his Miranda rights,  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.
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.
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.
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.
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.
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
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. 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.
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.
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.
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.
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.
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.
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
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).
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.
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 (¶32) (Miss. Ct. App. 2013). Therefore, while the
record clearly indicates Fontaine objected to the State's
introduction of just the two-minute segment of ...