Opinion
No. 1999-KA-00031-SCT
March 1, 2001
COURT FROM WHICH APPEALED: ALCORN COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. THOMAS J. GARDNER, III, DATE OF JUDGMENT: 11/20/1998
DISPOSITION: AFFIRMED
ATTORNEYS FOR APPELLANT: THOMAS HENRY FREELAND, IV, GREGORY ALLEN MEYER
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
DISTRICT ATTORNEY: JOHN R. YOUNG
EN BANC.
¶ 1. Vickie Swinney was convicted of the capital murder of Thomas Harville based on the underlying felony of robbery and sentenced to life in prison without the possibility of parole. She was also convicted of the aggravated assault of William Morrison and sentenced to twenty years, with both sentences to be served consecutively. From these convictions she appeals, claiming that unreasonable delay in bringing her before a judicial officer for her initial appearance resulted in statements that were used against her at trial, allegedly in violation of her right to counsel. Swinney also claims that the Circuit Court of Alcorn County erred in admitting only excerpts of these statements, allegedly out of context. Finally, Swinney argues that the State failed to prove the underlying felony of robbery, and in the alternative, that any proof of robbery consisted only of circumstantial evidence, and that the circuit court erred in failing to give a circumstantial evidence jury instruction.
¶ 2. Because her initial appearance was delayed unnecessarily, Vickie Swinney was constitutionally entitled to counsel before she gave the statement that was used to convict her. However, she knowingly and voluntarily waived that right before giving the statement. Her confession was voluntary and, therefore, admissible. As a result, the circuit court did not abuse its discretion in failing to grant a directed verdict for the charge of robbery, and it did not err in failing to grant a circumstantial evidence jury instruction. While the failure to admit her entire statements made to police officers was erroneous, Swinney has failed to show that it prejudiced the outcome of her case. For the foregoing reasons, the judgment of the circuit court is affirmed.
PROCEDURAL HISTORY
¶ 3. Vickie Swinney ("Swinney") and her brother, Nicholas Swinney ("Nicholas"), were indicted for the November 17, 1997, capital murder of Thomas Harville and aggravated assault of William Morrison on December 10, 1997. Swinney's motion for a severance, seeking a separate trial from Nicholas, was granted.
¶ 4. While waiting to be brought for her initial appearance, Swinney made a series of statements to the police. She subsequently sought suppression of these statements, claiming that they were the result of an unreasonable delay in bringing her before a judge, were taken in violation of her right to counsel, and that they were coerced by a threat that "if she did not confess to killing Don Harville then she would never see her child again."
¶ 5. Two hearings were held on this motion on July 22, 1998, and November 6, 1998. The circuit judge overruled the motion in the July 22 hearing, holding that she was brought within the forty-eight hour time period required by URCCC 6.03 and that the delay was not unreasonable. At the November 6 hearing, the judge overruled the motion to suppress Swinney's statements based on coercion without making findings of fact.
¶ 6. Swinney was tried beginning November 16, 1998, and was found guilty of capital murder and aggravated assault. She was sentenced to life imprisonment without the possibility of parole, and to twenty years imprisonment, to be served consecutively. The court entered a judgment on the jury verdict on December 10, 1998. Swinney moved for a judgment notwithstanding the verdict or in the alternative, a new trial on December 14, 1998, which was denied the following day.
FACTS
¶ 7. Vickie Swinney ("Swinney") and her brother Nicholas ("Nicholas") entered Don's Pawn Shop at approximately 2:15 p.m. on November 17, 1997. Don Harville, the owner, and two customers were in the store at that time. One of the customers, Sandra Vincent, identified the heavier, shorter sibling as Swinney and the taller one as Nicholas. After about twenty minutes, the two customers walked out, leaving Swinney, Nicholas, and Harville alone in the store.
¶ 8. Swinney gave Harville two rings to pawn. As he turned around to weigh the rings, Swinney pulled out a pistol and shot Harville in the back. William Morrison then entered the store and found Harville on the floor holding his chest. As he was attempting to call 911, he heard a loud "pow." Realizing it was gunfire, he ran for the door and was shot from behind. Morrison fell out of the doorway, and testified that one person ran from the store and jumped over him, and then a second, heavy-set person came out and stepped over him.
¶ 9. Morrison testified that he managed to crawl to the passenger side of his car, "and as I looked up, this second person that had ran out, the heavier set of the two, had got to the car and seen me still moving. And she reached into the car and pulled out a pistol." Morrison testified that he then ran into the street and another shot was fired.
¶ 10. This version of events was contradicted by other witnesses, who testified to what occurred outside the pawn shop. Teresa and Scott Crum testified that Morrison exited the store and a slender black man ran past him. They said that the man with the gun saw Morrison moving and turned back toward him. As the gunman pointed his weapon at Morrison, the Crums backed their vehicle between them in an attempt to protect Morrison. The man then ran to the passenger side of his own vehicle as a heavy set person was backing it up. Scott Crum stated unequivocally that, while the events outside the pawn shop were transpiring, the person with the gun was not Vickie Swinney.
¶ 11. When they were arrested at a police roadblock, Swinney was driving. A Glock 9-millimeter pistol was found on the ground near the passenger side of the car, and a clip was found where Nicholas had been sitting in the car. At the jail, an officer found two 9-millimeter bullets in Swinney's pocket.
¶ 12. While in custody, Swinney made several statements which are at the heart of this appeal. Captain Billy Clyde Burns of the Corinth Police Department testified that he interviewed her at approximately 5:00 p.m. on November 17, 1997, in a tape recorded statement which was later transcribed. She said that she went to the pawn shop to pawn two rings, and that Harville offered her $30.00 for them. Swinney also claimed that Nicholas was the gunman and that she at no time fired the gun. She also stated that she exited the store before Nicholas and was walking to her car when Morrison was shot.
¶ 13. Burns informed her that a gunshot residue kit would conclusively determine whether she had fired a gun recently. She then claimed to have fired a toy gun that day, which pops like a real gun, but has a dart in it. When told that a toy gun would not account for gunshot residue, she changed her story and said that she had fired a gun that day. She said that she was at the house of her friend, Manresa Hurd, that day and another friend had a gun that was jammed. She said that she then took the gun, "squeezed it," and it went off, putting a hole in the wall or ceiling. Hurd testified that no gun had been fired in her house that day, and that she did not see Swinney with a gun. She also testified that Swinney was at her house that day, and said she was unhappy and needed money.
¶ 14. On November 19, 1997, at approximately 9:00 a.m. an investigator for the District Attorney's office, Ralph Dance, confronted Swinney about her previous statements. She then said that she was talking to Harville about pawning the rings. When he turned his back to weigh the rings, she pulled the gun out, which was jammed. When she attempted to unjam the gun, it went off and shot Harville in the back. Dance wrote this statement down, but it was not tape recorded, and Swinney refused to sign it.
DISCUSSION
I. Whether the State unreasonably delayed Swinney's initial appearance for the purpose of investigation where the delay resulted in a confession and Swinney had requested counsel.
¶ 15. Swinney argues that URCCC 6.03 requires defendants to be brought for an initial appearance within forty-eight hours and without unnecessary delay. Swinney was brought before a judge approximately forty-three hours after her arrest. She argues that law enforcement was prepared to go forward with her arraignment on November 18, but delayed until 2:00 p.m. November 19 at the request of the District Attorney's office for the improper reason of "investigation."
¶ 16. Swinney further argues that this delay resulted in a violation of her constitutional right to counsel under U.S. Const. amend. VI and Miss. Const. art. 3, § 6. The statements that were used to convict her were obtained during the aforementioned delay and after she had requested counsel. Therefore, she argues, they should have been suppressed.
¶ 17. The court admitted the statements at the suppression hearing of July 22, 1998, holding that the delay was necessary in order to determine what charges to bring against Swinney. "I see nothing unreasonable under the facts and circumstances of this case in not bringing this defendant before a judicial officer at an earlier time. There might very well have been two capital murder cases to result from this . . . certainly the State has the right and the responsibility to investigate [what charges to bring]."
¶ 18. The watershed case on this issue is County of Riverside v. McLaughlin , 500 U.S. 44, 56-77, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). In McLaughlin , the United States Supreme Court held that while an initial appearance brought within forty-eight hours will generally suffice, it nonetheless may not pass constitutional muster "if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delays are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay's sake." Id. The Court gave examples of reasonable delays, such as transporting defendants, late-night bookings, securing the premises of arrest, "and other practical realities." Id. Furthermore, after forty-eight hours have passed, "the burden shifts to the [State] to demonstrate the existence of a bona fide emergency or other extraordinary circumstance." Id. at 57.
¶ 19. In Mississippi, an initial appearance under URCCC 6.03 includes a probable cause determination, and at that time the judge will inform the defendant of her right to not incriminate herself, her right to an attorney, her right to communicate with her attorney, family or friends, her right to a preliminary hearing, and the conditions under which she may obtain release, if any. As noted above, the Rule requires that every person in custody shall be taken for an initial appearance "without unnecessary delay and within 48 hours of arrest."
¶ 20. Though McLaughlin speaks to "unreasonable delays" and Rule 6.03 addresses "unnecessary delays," the two terms are used interchangeably here. The predecessor to Rule 6.03, UCRCCP 1.04, predates McLaughlin and required an appearance without "unnecessary delay," but did not contain the "within 48 hours of arrest" requirement. Rule 6.03 became effective May 1, 1995, approximately four years after McLaughlin, and reflects the ruling in that case. This an adoption of the Supreme Court's rule, despite the use of the term "unnecessary" rather than "unreasonable."
¶ 21. Therefore, to satisfy the dictates of Rule 6.03 and prevailing case law, arrested persons must be afforded an initial appearance both (1) within 48 hours, and (2) without unnecessary delay. We have defined "without unnecessary delay" to mean "as soon as custody, booking, administrative and security needs have been met." Evans v. State , 725 So.2d 613, 644 (Miss. 1997) (citing Abram v. State , 606 So.2d 1015 (Miss. 1992)). "Once these needs have been met, there is but one possible excuse for delay: lack of access to a judge." Abram, 606 So.2d at 1029. In Abram , the defendant was not brought for an initial appearance until approximately 72 hours after his arrest, immediately after he confessed. Id. We held that Abram would not have confessed had he been given an initial appearance and, consequently, access to counsel. This was deemed reversible error because Abram's conviction for capital murder was based entirely on his confession. Id.
¶ 22. Even if it occurs within forty-eight hours, an initial appearance is unconstitutional if the defendant can show that the hearing was delayed for an impermissible purpose, such as "gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay's sake." McLaughlin, 500 U.S. at 66. In Mississippi, an initial appearance brought within 48 hours may also be unconstitutional if the defendant can show that the delay was not necessary for custody, booking, administration, or security, and was not caused by lack of access to a judge. Evans, 725 So.2d at 644.
¶ 23. In the case at bar, Corinth Chief of Police Fred Johnson told local media that the "arraignment was set for today [Tuesday] but at the request of the District Attorney, the arraignment will be held at 2 p.m. on Wednesday." Swinney argues that this statement proves that custody, booking, administration, and security needs were met on Tuesday, November 18. In addition, a circuit court judge was present in Alcorn County for the civil term of court during the week beginning November 17, 1997. Therefore, Swinney argues, the appearance was delayed from Tuesday until Wednesday for an impermissible purpose. The circuit court disagreed, holding that the delay was necessary in order to determine whether double murder charges should be brought against Swinney.
¶ 24. We have defined "without unnecessary delay" to mean "as soon as custody, booking, administrative and security needs have been met." Id. This list is restrictive. To create another exception and allow an initial appearance to be delayed for the purpose of investigating what charges to bring against a defendant would give law enforcement wide latitude in circumventing the dictates of Rule 6.03 and prevailing case law.
¶ 25. To hold otherwise would enable investigators to take a suspect's statement, investigate the truthfulness of that statement, and then confront the accused with discrepancies, while at the same time delaying the initial appearance and thereby denying the accused access to counsel, which is provided at the initial appearance, under the guise of investigating which charges to bring against the accused. This is what happened in the case before us.
¶ 26. It was during the delay from Tuesday to Wednesday that Swinney made the statement that she accidentally shot the victim in the back. The investigator from the District Attorney's office, Ralph Dance, took this confession on Wednesday morning, November 19, 1997. Approximately four hours after giving this statement, Swinney was brought for an initial appearance. This confession constituted the only direct proof that she pulled the trigger.
¶ 27. Dance testified that he initiated this interview with Swinney in order to confront her with what he believed to be lies in her prior statements. "While we were doing the investigation, we had come to some conclusions that we, you know, after viewing the crime scene, viewing the body that didn't exactly match statements that she had given so I went back to re-interview Ms. Swinney and talk to her again about it." For these reasons, Swinney's initial appearance was unnecessarily delayed.
¶ 28. An accused's right to counsel attaches after arrest and at the point when the initial appearance "ought to have been held." Jimpson v. State , 532 So.2d 985, 988 (Miss. 1988) (quoting May v. State , 524 So.2d 957, 967 (Miss. 1988). Therefore, Swinney was entitled to assistance of counsel on the morning of Wednesday, November 19, 1997, when she confessed to Dance that she shot Harville.
¶ 29. The next questions are whether she specifically invoked her right to have an attorney present, and whether she properly waived it. "If the individual states that he wants an attorney, the interrogation must cease until his attorney is present." Miranda v. Arizona , 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966).
¶ 30. Before confessing to the shooting, Swinney signed a waiver of her right to assistance of counsel. She testified at the suppression hearing that "right before I signed this piece of paper, I said, `Well, I still want to talk to me a lawyer.' He said, `Go ahead and sign it. You don't need a lawyer. I'm just talking." At this interview, Swinney and Dance were alone in the office. The record reveals no evidence of Dance denying that Swinney specifically requested counsel before signing the waiver or that he responded that she did not need one before the waiver was signed.
¶ 31. Having found that Swinney was entitled to counsel and had invoked the right, we now must determine whether she waived the right before Dance's questioning led to her confession. Once the right to counsel is invoked, an interrogation may only continue if the defendant initiates further discussions with police, or knowingly, intelligently, and voluntarily waives the right. Smith v. Illinois , 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984).
¶ 32. Whether there has been an intelligent, knowing, and voluntary waiver is essentially a factual inquiry to be determined by the trial judge from the totality of the circumstances. Neal v. State , 451 So.2d 743, 753 (Miss. 1984) (collecting authorities). If the trial judge applied the correct legal standards and if there is substantial evidence to support the finding, it generally requires affirmance. Id.
¶ 33. In ruling this statement admissible, the trial court did so without stating the legal standard it applied and without making findings of fact. At the suppression hearing, Dance testified that he and Swinney were alone during the questioning at issue, which took place in "a small office in the back of the police department." He did not deny that Swinney requested counsel before signing the waiver, or that he told her to "go ahead and sign it" because she didn't need a lawyer.
¶ 34. Dance testified to the contents of the waiver as follows: Swinney has an eleventh-grade education; she can read and write; she understands her right to remain silent and have a lawyer present during questioning, and she was willing to talk to him at that time. She signed the waiver underneath a note that says "I understand my rights."
¶ 35. The transcript of the suppression hearing shows that Swinney had been informed of her rights at least four times and had signed a rights waiver with Dance and Billy Whitehead when she gave her first statement on November 17. After apparently refusing to sign two other rights waivers, Swinney signed the last one on November 19, just before her confession.
¶ 36. For a waiver of counsel to be valid, it "must not only be voluntary, but must also constitute a knowing abandonment of a known right or privilege, a matter which depends in each case `upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.'" Cannaday v. State , 455 So.2d 713, 723 (Miss. 1984) (citations omitted). Under this standard, there is substantial evidence to support a finding that Swinney was aware that she was entitled to refuse to sign the document and that she did so voluntarily, as she had refused to do so twice before. She therefore waived her right to counsel before making the inculpatory statement.
¶ 37. Swinney further alleges that her confession was not given voluntarily because Dance told her "If you don't tell me you did it, you won't see your son anymore."
¶ 38. "For a confession to be admissible, it must have been given voluntarily and not given because of promises, threats, or inducements." Dancer v. State , 721 So.2d 583, 587 (Miss. 1998) (citations omitted). Where the voluntariness of a confession is put at issue, the State bears the burden of proving voluntariness beyond a reasonable doubt. Neal v. State , 451 So.2d at 753. The admissibility of a confession is essentially a fact-finding function, and as long as the trial court applies the correct legal standards, we will not overturn a judge's finding of fact unless it is clearly erroneous or not supported by substantial evidence. Dancer, 721 So.2d at 587. Where the trial court admits a statement into evidence based on conflicting evidence, this Court must generally affirm. Id.
¶ 39. In overruling Swinney's motion to suppress the confession, the circuit court did not undertake a legal analysis; it did not identify a legal standard and apply it to the facts before the court. However, a trial judge's determination that a confession is admissible becomes a finding of fact and will not be disturbed unless manifestly incorrect or against the overwhelming weight of the evidence. Applewhite v. State , 753 So.2d 1039, 1041 (Miss. 2000).
¶ 40. When this confession was given, there were only two people present in the room, Swinney and Dance. Dance testified that he made no such statements to Swinney. The only evidence in the record regarding the voluntariness of the confession is the testimony of Swinney and Dance. When the circuit court admitted the statements, it decided as fact-finder that Dance was the more credible witness. Its decision was based on substantial evidence.
II. Whether the circuit court erred in admitting incriminating portions of Swinney's statements to police, but excluded exculpatory statements.
¶ 41. On motion in limine from the State, the trial judge admitted Swinney's confession into evidence as an admission under M.R.E. 801(d)(2), but excluded portions of her three previous statements to police where she said "I didn't do it" as inadmissible hearsay. Specifically, the court prevented the defense from questioning the officers about the exculpatory statements on cross-examination.
¶ 42. Swinney argues that if inculpatory portions of the statements she gave to police while in custody are admitted, then the entire statements must be admitted, including her exculpatory statements. As authority, she cites the following:
If a statement is admissible in evidence as an admission or declaration, it is admissible as an entirety, including the parts that are favorable, as well as those parts that are unfavorable, to the party offering it in evidence. In the event a statement admitted in evidence constitutes part of conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation
. . .
The general principles discussed above apply in criminal as well as civil cases. It is an elementary rule of law that when admissions of one on trial for the commission of a criminal offense are allowed in evidence against him or her, all that he or she said in that connection must also be permitted to go the jury. . . The fact that the declarations made by the accused were self-serving does not preclude their introduction in evidence as a part of the whole statement.
29A Am. Jur. 2d Evidence § 759, at 122-23 (1994) (emphasis added). Swinney also cites McIntyre v. Harris , 41 Miss. 81 (1866), for the proposition that where a part of a conversation is introduced into evidence, opposing counsel has a right to draw out the rest of the conversation on cross-examination.
¶ 43. The fact that Swinney thrice denied killing Harville tends to question the veracity of her admission. She should have been allowed to question the officers regarding her entire statement on cross-examination. The fact that the State only used selected portions of her statement in its case in chief also may tend to indicate bias of the State's witnesses in not being forthcoming with exculpatory evidence.
¶ 44. Furthermore, as was argued by Swinney at trial, adopting a rule such as that applied by the circuit court may force the defendant to testify to her statement in order to place it, in its entirety, before the jury. This may operate to subvert the accused's right not to testify in her own defense.
¶ 45. Therefore, the circuit court erred when it admitted the portions of Swinney's statements that favored the State's theory of the case while not allowing Swinney to draw out on cross-examination those portions of the statements that favor her position. However, Swinney has failed to show that this error has prejudiced the outcome of her trial. As a result, this error is harmless.
III. Whether the circuit court erred in failing to grant a directed verdict as to robbery.
¶ 46. Swinney argues that the only proof of robbery is that she had a motive because she needed money. All of the other evidence, she contends, relates to the crime of murder.
¶ 47. The standard of review for directed verdicts is abuse of discretion. Birkley v. State , 750 So.2d 1245, 1255 (Miss. 1999) (collecting authorities). In judging the sufficiency of the evidence on motion for a directed verdict, the evidence is to be viewed in the light most favorable to the State and all credible evidence supporting the conviction is to be taken as true, such that the State receives the benefit of all favorable inferences reasonably drawn from the evidence. Id. Issues regarding weight and credibility of evidence are for the finder of fact to resolve. Id.
¶ 48. Swinney had a motive to commit robbery. She told her friend that she was unhappy because she needed money, and her friend was afraid that she was going to get into trouble. She and her brother went to Don's Pawn Shop and waited approximately twenty minutes until the store was empty. When Harville turned around to weigh her rings, she shot him in the back by her own admission. Immediately afterward, William Morrison entered the store. He was shot, and immediately thereafter Swinney and Nicholas fled the store.
¶ 49. When they were apprehended, the siblings did not have any stolen property from Don's Pawn Shop in their possession. From this it may be reasonably inferred that the robbery was interrupted by Morrison, and that had he not entered the store when he did, Swinney and Nicholas would have left with Harville's property.
¶ 50. The circuit court's decision was based on evidence sufficient to support a finding. Therefore, the circuit court did not abuse its discretion in refusing to grant a directed verdict as to robbery.
IV. Whether the circuit court erred in refusing to give a circumstantial evidence instruction.
¶ 51. Swinney claims that the only proof of robbery was circumstantial evidence. She correctly notes that circumstantial evidence instructions are required where the only evidence of the crime is circumstantial. In other words, "when the prosecution is without a confession and without eyewitnesses to the gravamen of the offense charged." Woodward v. State , 533 So.2d 418, 431 (Miss. 1988). We have held failures to grant such an instruction where one is required to be reversible error. Simpson v. State , 553 So.2d 37, 39 (Miss. 1989).
¶ 52. Here, all elements of the crime were not shown solely by circumstantial evidence. Swinney admitted that she pointed a gun at Harville, and that she accidentally shot him in the back while attempting to unjam the gun. An essential element of robbery is the use of force or intimidation. Her confession constitutes direct evidence of this element of robbery. Therefore, this assignment of error is without merit.
CONCLUSION
¶ 53. Because her initial appearance was delayed unnecessarily, Vickie Swinney was constitutionally entitled to counsel before she gave the statement that was used to convict her. However, she knowingly and voluntarily waived that right before giving the statement. Her confession was voluntary, and therefore admissible. As a result, the circuit court did not abuse its discretion in failing to grant a directed verdict on the charge of robbery, and it did not err in failing to grant a circumstantial evidence jury instruction. While the failure to admit her entire statements made to police officers was erroneous, Swinney has failed to show that it prejudiced the outcome of her case. For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 54. COUNT I: CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT WITHOUT THE ELIGIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IN ACCORD WITH MISS. CODE ANN., SECTIONS 99-19-101 AND 97-3-19, 1972, ANNOTATED, AFFIRMED. COUNT II: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SAID SENTENCES ARE TO RUN CONSECUTIVELY WITH EACH OTHER. PITTMAN, C.J., WALLER, COBB, DIAZ AND EASLEY, JJ., CONCUR. BANKS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH AND MILLS, JJ.
¶ 55. I cannot agree with the majority's conclusion that the trial court committed harmless error in its refusal to admit Vickie Swinney's entire statements. Accordingly, I respectfully dissent.
¶ 56. The majority correctly acknowledges that it was error for the circuit court to admit only the selective portions of Swinney's statements favoring the State's theory of the case, but clearly misses the mark when it finds the error to be nonprejudicial. In statements to two different police officers, parts of which were used by the State, Swinney said: "I didn't do it, I didn't shoot Don." Other portions of her statement were used without the surrounding context. In my view, the trial court's ruling excluding these statements from the hearing of the jury cannot be viewed as harmless error. The only evidence tending to establish that Swinney shot the victim and the surrounding circumstances of that shooting come from Swinney's statements. Surely excluding the portions of that statement denying that she shot the victim and indicating that she was unaware of what was going on is prejudicial.
¶ 57. In her first statement, Swinney said that she had gone to the pawnshop to pawn rings. She was talking to the victim when she heard a shot and saw the victim grab his chest, walk around from the counter, and fall to the floor. She stated that she looked at her brother and said: "What have you done." She is further recorded as saying: "My brother had the gun pointed at me, I don't know if he was going to pop me that time or, what he was going to do at that moment. At that time, I'm telling him. `You've done got us in a lot of trouble. This man hadn't done nothing to you. He hasn't provoked you, or anything'. . . . So, I'm saying we've got to get some help, and he's saying no. By that time, another man . . . come in. He said `Oh, God,! Don!' I don't know who this man is . . . He turns to go get help, he told me `I got a phone. O.K. I said `Will you please call somebody? We had a little short fight.'"
The rule of completeness has been restricted in co-defendant cases. Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), held that a non-testifying co-defendant's statement must be redacted to omit reference to the remaining co-defendant when they are tried together, because the "interest in completeness of utterances must be balanced against the co-defendant's Sixth Amendment right to confront . . ." In this case, both Vickie Swinney and her brother, Nicholas Swinney, were charged as co-defendants but had separate trials.
¶ 58. The State elicited from the first officer, only the following portion to be read in direct examination: "By that time, another man come in. He said `Oh, God! Don!' I don't know who this man is . . . He turns to go get help, he told me `I got a phone.' O.K. I said `Will you please call somebody? We had a little short fight.'" The rest of what is quoted above from the statement was excluded.
¶ 59. In the second admitted statement, Swinney told a similar account, with the second officer giving similar testimony related to a second shooting. What she said was: "After my brother had shot this man and chased him, constantly firing, chased him across the street. And which he did, all right there in the open view with the public. That's the only time my hand was on this gun. I did not fire this gun at Don. I did not fire this gun at this other man. I did not participate in shooting no one." The last three sentences were excluded. The State introduced the first three sentences.
¶ 60. The recorded statements were twenty-one pages and twelve pages long, significantly less than the number admitted. Only by having the actual content of these statements would the jury have received an accurate picture of what Swinney said. Yet, in its motion in limine, the State sought to exclude exculpatory statements on hearsay grounds, characterizing them as self-serving. The trial court's ruling that the officers who took the statements containing her denial could not be asked to read exculpatory portions of her statements is simply not supported in the law.
¶ 61. We have long recognized the rule of completeness. When a part of a conversation has been introduced in evidence by a party, the adverse party has a right to put in evidence the rest of it, to "draw out from the witness the whole conversation on the subject in controversy." McIntyre v. Harris , 41 Miss. 81, 83 (1886).
¶ 62. In Sanders v. State, we restated the principle. 237 Miss. 772, 115 So.2d 145 (Miss. 1959). We recognized that just as the prosecution is entitled to show the whole statement, if any part be omitted, the accused is entitled to supply it. Id . at 775. As we put it there, "it is also well settled that if a confession is made under such circumstances as to authorize its admission in evidence, the accused is entitled to have the entire conversation, including any exculpatory or self-serving declarations connected therewith, also admitted." Id. In Nicholson ex rel. Gollott v. State, 672 So.2d 744, 754 (Miss. 1996), this Court distinguished the right to introduce a complete statement when a part is used from situations where the State has used no part of the statement:
Our caselaw states that the defendant is barred from introducing a statement made by the defendant immediately after the crime, if it is self-serving, and if the State refuses to use any of it. Tigner v. State , 478 So.2d 293, 296 (Miss. 1985); Jones v. State , 342 So.2d 735, 736-37 (Miss. 1977).
(emphasis supplied). Finally, this principle is embodied in our rules of evidence. Miss. R. Evid. 106.
Miss. R. Evid. 106 provides that "when a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."
¶ 63. Federal courts enforcing the identical rule, in order to implement the principle of fairness underlying the rule, have been careful not to overly restrict its application. See United States v. Branch, 91 F.3d 699, 750 (5th Cir. 1996) (noting that "although different circuits have elaborated Rule 106's `fairness' standard in different ways, compare United States v. Li , 55 F.3d 325, 329 (7th Cir. 1995), with United States v. Marin , 669 F.2d 73, 84 (2nd Cir. 1982) common to all is the requirement that the omitted portion be relevant and `necessary to qualify, explain, or place into context the portion already introduced.'"; United States v. Pendas-Martinez , 845 F.2d 938, 944 (11th Cir. 1988); United States v. Smith , 794 F.2d 1333 (8th Cir. 1986) (holding that generally, when part of a defendant's post-arrest statement is introduced into evidence, the defendant has the right to have the entire statement introduced), United States v. Crosby , 713 F.2d 1066, 1074 (5th Cir. 1983); United States v. Kaminski , 692 F.2d 505, 522 (8th Cir. 1982) (quoting United States v. Wenzel , 311 F.2d 164, 168 (4th Cir. 1962)), if exculpatory and relevant to those portions of the statement introduced by the prosecution.); Marin , 669 F.2d at 84-85 (citing United States v. McCorkle , 511 F.2d 482, 486-87 (7th Cir. 1975)).
The federal rule governing admissibility of remainder of writing or recorded statement is identical. Fed.R.Evid. 106. Likewise, its purpose is to permit contemporaneous introduction of recorded statements that place in context other writings admitted into evidence which, viewed alone, may be misleading. United States v. Branch , 91 F.3d 699, 750 (5th Cir. 1996).
¶ 64. By allowing prosecution witnesses to testify to very limited excerpts, and preventing defense counsel from providing a complete text through either cross-examination or the proffered exhibits, the trial court created a misleading impression about Swinney's statements for the jury. This is reversible error. Accordingly, I would reverse and remand for a new trial.