256 So. 3d 615
Miss. Ct. App.2018Background
- June 23, 2010: owners of a trailer reported burglary (fishing rods/reels, NASCAR collectibles, CDs/DVDs, bow/arrows). Police searched a nearby trailer owned by Mark Walker (where appellant Fontaine and family lived) and found many stolen items in plain view in the Fontaines’ bedroom and other rooms.
- Fontaine was arrested, gave a written statement and later an audio-recorded interview with a polygrapher retained by defense counsel; a two-minute excerpt of that recording was admitted at trial over Fontaine’s objection. Fontaine did not proffer the remainder of the recording at trial.
- Walker (co-defendant) executed an affidavit denying Fontaine’s presence at the burglary but died before trial; Fontaine sought to admit the affidavit days before trial and the court excluded it as untimely and hearsay.
- Prosecution called Aundrea McDaniel who testified Fontaine participated in the burglary and that stolen goods were moved to Walker’s trailer; other witnesses (officer, victim, Fontaine’s wife, Fontaine) gave conflicting accounts.
- Jury convicted Fontaine of burglary of a nonresidential dwelling and conspiracy to commit such burglary; Fontaine was sentenced to consecutive terms (7 years + 5 years). He appealed, raising evidentiary, prosecutorial-misconduct, sufficiency, and weight-of-evidence claims.
Issues
| Issue | Fontaine's Argument | State's Argument | Held |
|---|---|---|---|
| 1. Admission of 2-minute polygraph interview excerpt without remainder | Excerpt was taken out of context; Rule of Completeness entitled Fontaine to admit the rest of the recorded interview | Defense failed to proffer remainder at trial; without proffer issue waived and court cannot assess prejudice | Affirmed: issue waived for appellate review because Fontaine did not proffer the rest of the recording at trial; no reversible abuse of discretion shown |
| 2. Exclusion of Walker’s affidavit (deceased co-defendant) | Affidavit was exculpatory and admissible as a statement against interest under M.R.E. 804(b)(3) | Affidavit was untimely under URCCC 9.05 and was self-serving/hearsay; declarant not exposed to additional penal interest when he signed it; lacked corroborating trustworthiness | Affirmed: affidavit untimely as an alibi notice and properly excluded as hearsay/self-serving despite declarant’s death |
| 3. Prosecutorial misconduct (witness promises; improper comment on missing witnesses) | Prosecutor failed to correct witness’s false testimony re: promises and improperly argued about defense’s uncalled witnesses to prejudice jury | Alleged misstatements were either unsupported by record or withdrawn; objections not timely lodged for some comments | Affirmed: comments did not produce unfair trial; one remark withdrawn and another was unpreserved for appeal |
| 4. Sufficiency/weight of evidence (conviction supported?) | McDaniel’s accomplice testimony unreliable; possession inference weak | McDaniel’s testimony corroborated by officer and recovery of stolen items in Fontaine’s bedroom; credibility is jury’s province | Affirmed: evidence, viewed in State’s favor, was sufficient and verdict not against overwhelming weight of evidence |
Key Cases Cited
- Cooper v. State, 200 So. 3d 1065 (Miss. Ct. App. 2016) (abuse of discretion review for evidentiary rulings)
- Sanders v. State, 115 So. 2d 145 (Miss. 1959) (rule permitting trial judge to limit portions of recordings admitted; accused entitled to whole statement when prosecution offers part)
- Thompson v. State, 602 So. 2d 1185 (Miss. 1992) (proffer requirement to preserve excluded testimony for appeal)
- Payton v. State, 897 So. 2d 921 (Miss. 2003) (rule of completeness principles; party opening door may admit otherwise inadmissible evidence)
- Weatherspoon v. State, 732 So. 2d 158 (Miss. 1999) (polygraph evidence generally inadmissible)
- Bush v. State, 895 So. 2d 836 (Miss. 2005) (standard for reviewing legal sufficiency of the evidence)