E-Filed Document Apr 4 2014 14:46:44 2012-KA-01839-COA Pages: 18 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI BRANDY NICOLE WILLIAMS APPELLANT VS. NO. 2012-KA-1839-COA STATE OF MISSISSIPPI APPELLEE SUPPLEMENTAL BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 8007 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680
TABLE OF CONTENTS TABLE OF AUTHORITIES... ii CITATIONS FOR PROPOSITION ONE...1 THE APPLICABILITY OF CARR, LACY, AND HARTFIELD...5 M.R.E., RULE 804(B)(3)...6 THE APPLICABILITY OF CARR V. STATE...8 THE APPLICABILITY OF CALVIN LACY V. STATE...10 THE APPLICABILITY OF HARTFIELD V. STATE...12 CONCLUSION...14 CERTIFICATE OF SERVICE...15 i
TABLE OF AUTHORITIES STATE CASES Carr v. State, 655 So.2d 824 (Miss. 1995)...5 Hoover v. State, 552 So.2d 834, 838 (Miss.1989)... 9-12 Lacy v. State, 700 So.2d 602 (Miss. 1997)...5 ii
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI BRANDY NICOLE WILLIAMS APPELLANT VS. NO. 2012-KA-1839-COA STATE OF MISSISSIPPI APPELLEE SUPPLEMENTAL BRIEF FOR THE APPELLEE The Mississippi Court of Appeals has by order instructed the State of Mississippi to file a supplemental brief citing facts in Proposition One to the appellate record and arguing whether the opinions in Carr v. State, Lacy v. State, and Hartfield v. State apply to Proposition One. CITATIONS FOR PROPOSITION ONE. The Mississippi Supreme Court has ordered the State to include a citation to the parts of the record relied on for all facts contained in Proposition One of its brief. The first fact that is argued is that Christopher Baxter contradicted himself about who was driving the truck during the chase. Christopher Baxter first denied that Brandy Williams ever drove during the chase, even at the beginning of the chase when Deputy Daffin first turned on his blue lights. Baxter said that he drove the entire time during the chase. Later in Baxter s statement, Baxter admitted that Brandy Williams was driving when Deputy Daffin turned on his blue lights and the 1
truck, with Williams driving, drove away at a high rate of speed. Those facts are found in the appellate record in both the pre-trial argument of the motion in limine and in Baxter s statement. Defense counsel conceded in the argument that Baxter initially said that Williams was not driving but then Baxter changed his answers in response to the questions. Counsel argued that the statement did not contradict itself. Counsel argued that Baxter was clarifying things he had said, but counsel contended there were no direct contradictions. Tr. 37-38. Counsel continued and said, He does - - he made a statement that she wasn t driving; and, then, on questioning - - or being presented with other evidence, he said, oh, she was driving in the beginning. Tr. 38. The contradictions in Baxter s statement are also found, as would be expected, in the transcript of Baxter s statement to law enforcement. Baxter s statement is designated Defendant s Exhibit 2 ID, and is found in the package of Exhibits. The specific facts and pages are found below. Christopher Baxter told conflicting stories about who was driving the truck during the chase. In the early portion of Baxter s statement he said that he was driving when Deputy Daffin got behind them and turned on his blue lights and siren. Baxter said that he and Brandy Williams were leaving town and a George County Deputy got behind them. Baxter said he did not stop. He said he failed to yield to the blue lights. When asked if he was driving, Baxter said UH HUH. Transcribed pages 16-17 of Christopher Baxter s statement, Defendant s Exhibit 2 ID. The pages in Baxter s statement also contain an additional set of page numbers. Pages 16-17 are also numbered 880-881. The latter set of numbers in the 800's and 900's are presumably the numbers from the appellate record in Baxter s appeal. Detective Nicholson asked Baxter if Brandy Williams was driving when the Deputy got behind them, and at some point later Baxter took over the driving. Baxter shook his head negatively. 2
Nicholson asked if Baxter was saying that Brandy Williams never drove the truck. Baxter shook his head negatively. Transcribed pages 30-31, Baxter s statement, Defendant s Exhibit 2, ID page 894. Nicholson continued to ask Baxter who was driving when they left WalMart. Was it Baxter or Brandy Williams? He asked Baxter if what he(nicholson) was saying to Baxter was true. Baxter said, What you said. Then Baxter said, I made her let me drive. Nicholson asked Baxter,...did she jump in the back and make you drive? Did she say I m not gonna do this? Baxter answered, I made her let me drive. Transcribed pages 31-33, Baxter s Statement, Defendant s Exhibit 2 ID, page 896-897. Later in Baxter s statement, Baxter was asked when the deputy first got behind them, and Brandy Williams was driving before they swapped, why didn t she just stop? Baxter replied Because I told her not to. When asked if he threatened her in any way, tell her to take off, or go, go, go, Baxter replied that he believed that he told her to go. He said he told her, Bitch go. Transcribed pages 48-49 of Christopher Baxter s statement, Exhibit 2 ID, pages 912-913. Nicholson asked Baxter if they saw the Deputy from George County, and he told Williams to take off. Baxter replied, UH HUH. Transcribed page 74 of Baxter s statement, Defendant s Exhibit 2 ID, Page 939. Baxter admitted he was under the influence when he gave the statement. Deputy Wallace asked Baxter if he was high at the time of the statement. Baxter answered, S---, I need some more. Deputy Wallace responded, You need some more so that means you re not right now. Nicholson told Baxter, Sit up for me because I want to make sure you get this right. Baxter told Nicholson, I m listening. I m good. Transcribed pages 28-29, Baxter s statement, Defendant s Exhibit 2 ID page 892-893. Baxter had already served time and had failed to appear in court when Deputy Daffin saw 3
them and began the chase. Baxter had failed to appear for sentencing on drug crimes. When Wallace asked Baxter how long he had been self-employed, Baxter replied, Since I come out of prison. Transcribed Page 5, Baxter s statement, Defendant s Exhibit 2 ID, page 870. Baxter told Wallace that he had understood the Court was going to sentence him to three years to serve and seven on paper for manufacturing and possession. He said he did not go to court when his sentencing was scheduled. Transcribed pages 12-13, Baxter s statement, Defendant s Exhibit 2 ID, pages 876-877. Baxter told Nicholson, I m a convicted felon. Wallace asked Baxter how much time he had done all together. Baxter answered, About two years. Transcribed pages 77-79, Baxter s statement, Defendant s Exhibit 2 ID, pages 941-943. Baxter told Wallace that he did not remember things when I get mad or whatever... I just black out. Transcribed pages 51-52, Baxter s statement, Defendant s Exhibit 2 ID, pages 915-916. Nicholson asked Baxter where Brandy Williams was sitting and what was she doing. Baxter replied that she was in the passenger seat, but he did not remember what she was doing or how she was sitting. Transcribed page 34, Baxter s statement, Defendant s Exhibit 2 ID, page 898. Nicholson asked Baxter if he could remember if Williams was bent over or not looking when this happened. Baxter said, I don t believe I was paying her no attention. Baxter s Transcribed Statement, page 57, Defendant s Exhibit 2 ID, page 921. Robin Howell, Chris Baxter s aunt, testified that Brandy s father s truck came by. An officer was in pursuit. Brandy was driving, and Chris was a passenger. Tr. 677. Howell called them, and Brandy answered. Howell asked if they got Chris. Brandy said no. They re everywhere. I ve got to get off this road. Howell heard Chris Baxter say, Just go, then, go. Brandy told Howell that they were in the Merrill Community. Tr. 681-682. 4
Brandy also said, They re all over me. I got to change roads; and I heard his voice, Just go then, go. Tr. 686. Duane Bowlin said when the truck came through he could not identify the driver. He did note that the passenger had facial or hair characteristics similar to Chris Baxter. Tr. 632. Amber Ring testified that she was in a car and saw the maroon truck running a stop sign at the interseciton of Cochran Town and Merrill. A female was driving. A George County Deputy was following it. Tr. 401. Floyd Whatley testified that he was driving near the intersection of Cochran Town and Merrill. Whatley said a maroon Z71 extended cab truck had the stop sign but almost ran over him. Whatley said the driver was female. Tr. 590-592. THE APPLICABILITY OF CARR, LACY, AND HARTFIELD The Mississippi Court of Appeals also ordered the State to argue whether Lacy v. State, 700 So.2d 602 (Miss. 1997), Carr v. State, 655 So.2d 824 (Miss. 1995), and Hartfield v. State, 2012-KA- 01232-COA, (January 14, 2014), are applicable to Issue Number One. The issue before this court in the first proposition is whether the trial court erred when it excluded Baxter s statement from evidence. All three cases and Williams involved the issue of the trial court excluding the co-defendant s statement. Carr v. State is more applicable to Williams than Lacy or Hartfield, but all three cases apply. The court in each case decided whether an out of court statement by a co-defendant should have been admitted under M.R.E., Rule 804(b)(3). Rule 804(b)(3) contains the hearsay exception for statements against the penal interest of the declarant. Carr is the most applicable to Brandy Williams s case because the out of court statement 5
contains two contradictory versions of what happened, similar to Baxter s statement. One was exculpatory of Carr, and the other was inculpatory of Carr. Similarly, Baxter s statement both exculpates and inculpates Williams. Baxter at first denied that Brandy Williams drove. Later during the same statement, Baxter admitted that she was driving when the chase began. The co-defendants in both Carr and Williams gave statements. The co-defendants, Simon and Baxter, said in one portion of their statements that they, not Carr or Williams, committed the acts which caused the death of the victims. In other words, they said that they were responsible for the killing. In another portion of the statements, however, the co-defendants said that Carr and Williams committed acts which supported their guilt. The Courts in Carr and Williams used M.R.E., Rule 804(b)(3) analyze the claims that the Courts erred excluding the out of court statements The State argued that Baxter s statement was untrustworthy because of the contradictions in the statement and because of Baxter s criminal past. M.R.E., RULE 804(B)(3) The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:... (3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. 6
The comment to Rule 804(b)(3) that is pertinent to this argument reads as follows: (3) Statement Against Interest.... A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. All three cases use the same three factors to analyze the admissibility of the out of court statements, i.e., trustworthiness of the out of court statements, whether the statements were exculpatory, and whether they were corroborated. Each opinion involves the hearsay exception which allows statements against the penal interest of the witness. The Mississippi Supreme Court affirmed the trial court s ruling that excluded the statement in Carr. The Supreme Court reversed the decision in the trial courts in Lacy, and the Mississippi Court of Appeals reversed the decision in Hartfield. The appellate courts found that the out of court statements in Lacy and Hartfield were trustworthy, corroborated, and exculpatory and should have been admitted. All three seek to determine if the statement was trustworthy. If the statements were not internally consistent and if they contradicted each other, they were less trustworthy than if they were consistent. If the statement was consistent, however, and did not contradict itself, that made it more trustworthy. The three cases discuss corroboration of the statements by other evidence. If other witnesses who observed the same facts gave testimony consistent with the out of court declarant s testimony, then the out of court declarant s statement is obviously better corroborated than a statement which is contradicted by the testimony of other witnesses. 7
Carr, Lacy, and Hartfield all involve the admissibility of out of court hearsay statements. The appellants claimed the statements exculpated them. The trial courts excluded the statements in all three cases. All three opinions discuss using the same factors to analyze the issue. The three factors are (1) whether the statements were trustworthy, (2) whether they exculpated the defendant, and (3) whether the statements were corroborated by other evidence in the trial. As noted above, the Mississippi Supreme Court affirmed Carr and reversed Lacy. The Mississippi Court of Appeals reversed Hartfield. On the matter of corroboration, the Courts in Lacy and Hartfield found that the corroboration of the statement does not have to be absolute. Neither court elaborated on what that meant, but it may mean that if a sufficient portion of the facts are corroborated, then it is not necessary that all of the facts be corroborated or that there may be some conflict in the testimony regarding those facts, and the statements still be admissible. There is, of course, a difference in a situation where there is no evidence to corroborate the statement and a case where there is evidence that refutes the statement or some portion of it. THE APPLICABILITY OF CARR V. STATE While all three opinions are applicable, the facts in Carr are the most similar to the facts in the trial of Brandy Williams. The statement in Carr was given by Carr s co-defendant, Simon. Simon s statement contradicted itself. It was internally inconsistent, as is Baxter s statement. Both Carr and Simon were prosecuted for murdering all four members of a family named Parker in Quitman County. The circuit court excluded a statement given by Carr s co-defendant Simon. Simon gave a statement to law enforcement that attempted to place the sole blame for killing the Parkers on Carr, and later Simon s statement claimed that Simon killed the Parkers. 8
The Mississippi Supreme Court focused upon the trustworthiness of the statement. In Carr v. State the Mississippi Supreme Court found as follows: The concern here is corroborating evidence and trustworthiness of the statement. The Rule also looks to whether the statement is offered to exculpate the accused. The trial court specifically found that Simon's motivation in claiming to have killed the Parker's did not appear to be to get Carr off the hook; Simon placed the blame for the murders on Carr within the framework of the same statement.*835 Additionally, the inconsistencies in Simon's statement justified the trial judge's finding the statement untrustworthy. We find Simon's statement was properly excluded in the guilt phase under Rule 804(b)(3). Carr also maintains that the statement was admissible because it was admitted as a confession in the Simon trial. To exclude it now would allow the State to pursue inconsistent theories in their separate prosecutions of Carr and Simon. The answer to that lies in Hoover v. State, 552 So.2d 834, 838 (Miss.1989), which allows the State to argue alternate theories of the case when prosecuting separate individuals. The out of court statements in Carr and the case sub judice were made by co-defendants and contain two conflicting scenarios. Baxter s statement does not get Williams off the hook, just as the court found that Simon s statement did not get Carr off the hook. Baxter first denied that Brandy Williams was driving the truck when the chase began. He said that she did not have anything 9
to do with the chase. Later in the same statement, Baxter said Brandy was driving when the chase started. See Transcribed pages 30-31, Baxter s statement, Defendant s Exhibit 2, ID page 894. Transcribed pages 31-33, Baxter s Statement, Defendant s Exhibit 2 ID, page 896-897. Instead of exonerating or exculpating Brandy Williams, Baxter s statement supports a finding that Brandy Williams joined with Baxter in an endeavor to escape law enforcement by driving at dangerously high speeds even if it meant causing serious bodily injury or death to other human beings. Williams is charged with acting alone or in concert with Baxter in causing the death of Sheriff Weldon. Baxter s statement ultimately says that Williams drove off at a high speed, continued at high speeds, ran through stop signs without stopping, and the truck in which they were riding later ran over and killed Sheriff Welford. This is not to say that Baxter said that Williams was driving when they ran over Sheriff Welford. Similar to Carr, Baxter s statement was internally inconsistent, not trustworthy, and, when the entire statement is examined, does not exculpate Williams. THE APPLICABILITY OF CALVIN LACY V. STATE: In Lacy the Mississippi Supreme Court found that sufficient corroborating evidence indicating trustworthiness existed in the statement given by John Lacy, the defendant s brother. John Lacy s statement in Lacy exculpated Calvin Lacy, by way of contrast to Baxter s statement. The court then stated the following facts: John Lacy s statement excluded in Lacy had been under oath with counsel present. The statement was given the day after the shooting. The gun belonged to John Lacy and was given to the police. 10
Darrell Hill testified, contrary to the evidence offered by the State, that Calvin never took the gun from John, although he could not see into the car.fn1 All three witnesses agreed that the shots came from a car occupied by Calvin and John. All agreed that John initially fired the gun into the air. John s mother testified that her other son, John Lacy, told her he was afraid he shot a man and he would never see his mother again. See Lacy, Id., page 606, 14. The Mississippi Supreme Court also found that John Lacy s statement, in addition to being trustworthy, was corroborated sufficiently. Lacy, Id., at 608, 18. The Mississippi Supreme Court found that John Lacy s statement was trustworthy. The court based that finding upon the evidence in the record. The court also found that the evidence in the record sufficiently corroborated John Lacy s statement. The Court of Appeals had reasoned that the trial judge indirectly determined that sufficient corroborating circumstances, if any, indicating the trustworthiness of the statement did not exist to justify their admission. The Mississippi Supreme Court said the following, We respectfully disagree with this conclusion. John's statement was given under oath in the presence of his attorney on the day following the shooting, and three witnesses for the State testified that the shots came from a car occupied only by John and Calvin. The testimony also indicated that while two spent shells were found on the ground, they were accounted for by the warning shots which were fired by John. It is argued that the trajectories of the fatal shots indicate that if Calvin had fired them, the spent shells from those shots would have been likely to also have landed on the ground, while if they were fired by John they would have ejected into the car. All agreed that John initially had the pistol and fired it in the air. The State's evidence also was to the effect that Calvin took the pistol from John before 11
they returned to the car. Immediately before John was put on the witness stand, Darrell Hill testified, contrary to the evidence offered by the State, that Calvin never took the gun from John, although he could not see into the car. Calvin Lacy s case is distinguished from Brandy Williams s case. John Lacy s statement had numerous indicia of trustworthiness supporting it. Additionally, John Lacy s statement was corroborated by the testimony of other witnesses. THE APPLICABILITY OF HARTFIELD V. STATE The facts in the opinion in Hartfield v. State, No. 2012-KA-01839-COA, January 14, 2014, are distinguished from the facts in the trial of Brandy Williams. As in Lacy, Id., the out of court statement in Hartfield exculpated Hartfield. The Mississippi Court of Appeals in Hartfield found that Graham s statements were both trustworthy and were independently corroborated. Hartfield, Op. Paragraphs 30-31. The Court discussed Graham s letters to Hartfield and to Graham s mother. Ultimately the Court of Appeals found that Graham s statements indicate trustworthiness. The Court based this finding upon Graham s relationship with her mother and because Graham provided all the details of the murder. Hartfield, Op. Paragraph 30. The Court of Appeals also found that there... was independent corroboration. The Court based this finding on the consistency of Graham s statement with Dixon s testimony and Dr. Hayne s autopsy report. Harfield, Op. Paragraph 31. Finally, the court, quoting Lacy, Id., found that it is not necessary for the corroboration to be absolute. In conclusion, the opinion in Hartfield is distinguished factually from Brandy Williams s 12
case. The Court in Hartfield found that there was independent corroboration and exculpated Hartfield. The Court found that the statements by Graham were trustworthy and should have been admitted. In Williams s case, by way of contrast, Baxter s statement has a portion that not only does not exculpate Williams, but inculpates her by saying that she was the one driving who sped away from Deputy Daffin at a high speed to begin the chase. Baxter s statement is not corroborated by other evidence. Finally, Baxter s statement is not trustworthy because of the contradictions, the other evidence refutes its assertions, and because of Baxter s criminal history. 13
CONCLUSION To sum up, the opinion in Carr is more applicable than the opinions in Lacy and Hartifield. All three opinions are, however, applicable to the issue of the admissibility of Baxter s statement. Baxter s statement has more in common with Carr for the purpose of analyzing the issue than it does with Lacy and Hartfield. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: s/ Scott Stuart SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 8007 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680 14
CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: George T. Holmes, Esquire Indigent Appeals Division MS Office of the State Public Defender P.O. Box 3510 Jackson, MS 39207-3510 Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable Richard W. McKenzie Circuit Court Judge Post Office Box 1403 Hattiesburg, MS 39403 Honorable Anthony Lawrence District Attorney 355 Cox Street 2nd Floor Lucedale, MS 39452 This the 4th day of April, 2014. OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI 39205-0220 TELEPHONE: (601) 359-3680 s/ Scott Stuart SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL 15