Fulks v. State
110 So. 3d 764
| Miss. | 2013Background
- Fulks’s conviction was reversed in 2009 due to a late-disclosed witness and a required continuance, and the case was remanded.
- In 2011, a jury reconvicted Fulks of armed robbery and acquitted him of aggravated assault, sentencing him to 35 years MDOC.
- Before the second trial, the State sought to admit two witnesses’ prior testimony (Sherry and Billy Joe Franks) under Rule 804.
- The State also sought either a continuance or admission of co‑defendant Joshua Glenn’s earlier testimony; Glenn had pleaded guilty to accessory after the fact.
- Fulks moved for recusal based on the trial judge’s pre‑trial remarks; the court denied the motion.
- During trial, the State read the former testimony of the Frankses and Fulks, and presented Glenn’s earlier statements and testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Fulks’s prior testimony | Fulks possessed prior testimony admissible as party admission. | Fulks argues discovery issues and coercion taint the prior testimony. | Judge did not abuse discretion; former testimony admitted as party admission. |
| Recusal | Fulks alleges judge’s pretrial remarks compromised impartiality. | Judge Kitchens remained impartial; comments did not influence verdict. | No manifest error; recusal not warranted. |
| Prosecutor comments on Glenn’s plea | Prosecutor’s remarks about Glenn’s guilty plea and sentence prejudiced Fulks. | Remarks were permissible; no plain error and defense cross-examined Glenn. | No plain error; permissible comment on plea/sentence. |
| Sherry Franks’ availability and admissibility of her prior testimony | State failed to prove unavailability or improperly admitted testimony. | Franks unavailability established by medical/mental impairment evidence. | Court did not abuse discretion; Franks’ prior testimony properly admitted under Rule 804. |
Key Cases Cited
- Reed v. State, 523 So.2d 62 (Miss. 1988) (former testimony admissible when proper basis exists)
- Stringer v. State, 491 So.2d 837 (Miss. 1986) (admission of prior testimony as admission evidence)
- Arrington v. State, 411 So.2d 779 (Miss. 1982) (former testimony may be used against defendant)
- McCullough v. State, 750 So.2d 1212 (Miss. 1999) (continuance required for undisclosed evidence; waiver if not sought)
- Williams v. State, 81 So.3d 1165 (Miss. Ct. App. 2011) (plain-error review for unobjected trial‑level conduct)
- Scott v. State, 8 So.3d 855 (Miss. 2008) (presumption of impartiality; manifest error standard on recusal)
- Dodson v. Singing River Hospital System, 839 So.2d 530 (Miss. 2003) (reasonable-person standard for recusal decisions)
- Parker v. State, 514 So.2d 767 (Miss. 1986) (unavailability and Rule 804 analysis)
- Earl v. State, 672 So.2d 1240 (Miss. 1996) (unavailability standard under Rule 804(a)(4))