Lead Opinion
for the Court:
¶ 1. Rundall James was convicted of murdering his great aunt, Zelphia Ivory, by pouring hot cooking oil on her as she slept. Ivory died before she could give a statement to the authorities. The State built a case against James showing that he had threatened to “burn” Ivory for making his dog sick and that he had been in the house a short time before the attack. However, the State’s key witnesses— James’s brother and his girlfriend — suggested James had left before the attack and testified that Ivory could not identify her attacker. The prosecution then impeached its own witnesses with unsworn prior statements that James had been identified as the assailant and that he was seen outside the house shortly after the attack.
¶ 2. We find that the impeachment was improper without the required predicate of surprise or unexpected hostility. We also conclude the error was prejudicial enough to deny James a fair trial, and we there
FACTS
¶ 3. In September 2009, Rundall James and his brother Zaeherius James (“Zach”) were living with Ivory, their great aunt, at her home in Mound Bayou. Ivory was ninety-five years of age, and over the years she had allowed many family members to stay in her home.
¶ 4. James allegedly came to believe Ivory had sickened his Rottweiler by feeding it table scraps. The dog ended up at the vet and may or may not have died. James was upset and demanded that Ivory pay for the dog and its veterinary expenses, but she was unable or unwilling to do so. This made James angrier, and multiple witnesses testified that in the weeks before her attack he had alternatively threatened to kill her, burn her house down, or “burn” her if she did not compensate him for the dog. Ivory made a report to the police about James approximately one week before the attack. The day before the attack James apparently waited for Ivory at the Senior Citizen Complex in Cleveland, Mississippi. Ivory appeared to be afraid of James and refused to go with him when he insisted. James repeatedly said: “You know what you’re supposed to be doing. You’re going with me.” James eventually relented and left.
¶ 5. Sometime after midnight Zach and his girlfriend, Samantha Jackson, returned to Ivory’s home. Zach was drunk, but Samantha had had only one drink. Zach had forgotten his key to the house, so he had to knock on Ivory’s window for her to let them in. They, along with two of Zach’s small children, retired to one of the bedrooms.
¶ 6. Lewon Payne testified that he and James had spent the evening at a high school football game. They went drinking afterwards, and when they got back to the Payne home, James was drunk. James wanted to sleep there, but he apparently was not ready to call it a night, so Crystal James — James’s sister and Payne’s then-wife — insisted Payne take James home. Payne complied, dropping James off at Ivory’s house between 2:00 and 8:00 a.m.
¶ 7. Samantha and Zach testified that sometime after they went to bed, James came into the house. He knocked on the door to their bedroom and asked for a cigarette. Zach awoke but did not respond; Samantha told James they did not have one. James then told Samantha he was going to his cousin’s house, and he closed the door. Three to five minutes later, Samantha saw a shadow move past the doorway, and a few minutes after that she smelled grease and heard cracking sounds. Then a shadow came back and forth across the doorway again, and she heard Ivory scream. Both Samantha and Zach got out of bed and rushed to Ivory’s bedroom, where they found her covered in grease. According to Samantha, she said, “I’m burning. He came through the window. Dear Lord, why am I burning so bad?” Zach testified Ivory told him someone had tried to come in through the window, but he found all the windows closed and locked. The front door, however, was either cracked open or “wide open,” depending on the testimony. Zach got dressed, retrieved a pistol, and went outside where he saw a man he described as “[n]o one in particular. Tall male, brown skin.” Zach initially “just assumed” the man was James because he appeared to be walking toward the house, but when Zach came out the man veered away. Zach denied the man looked like his brother. At some point, Zach fired a shot, though it is unclear from his testimony whether he was trying to shoot the man or just frighten him away. Zach and Samantha called
¶ 8. Ivory suffered second- and third-degree burns to approximately forty percent of her body. She was taken by ambulance to the Bolivar County Medical Center and shortly thereafter flown to a burn center in Augusta, Georgia. She died of sepsis about one week after the attack. Ivory was sedated and intubated during her treatment and was never able to speak to the authorities.
¶ 9. The -prosecutor repeatedly questioned Samantha and Zach about prior statements they had made to investigators. The duo denied critical assertions supporting the prosecution’s case that were never established with admissible substantive evidence: that they would have heard James leave if he had left the house before the attack, that Ivory had identified James as the assailant, and that James was seen outside the house immediately afterwards. The prosecutor also sought to impeach their testimony on other critical points, including: whether and to what degree James was angry with Ivory over the dog, whether he had threatened her, and how many people had a key to the house. Zach and Samantha denied many of the alleged prior statements.
¶ 10. The State then called Investigator Charles Griffin, who testified to prior statements by both witnesses. The State also introduced and played for the jury a tape recording of Griffin’s interview with Zach that confirmed the investigator’s account of what Zach had said. Another investigator testified Zach had given him a similar statement about a year after the first interview. The State also called Le-won Payne, James and Zach’s former brother-in-law, who testified that Zach had, in a teary confession, told him Ivory identified James as her attacker. Zach also told Payne it was James he had fired upon outside the house. Payne described Zach as wracked with guilt for shooting at his brother and for implicating him to the authorities. Several times during the trial, the judge admonished the jury that it could not consider the impeachment as substantive evidence.
¶ 11. Zach and Samantha either denied making the prior statements or attempted to explain them. When confronted with his prior statement to Investigator Griffin, Zach testified he had not told the truth. He explained that after the attack, he and Samantha were arrested for the crime and booked into the Bolivar County Jail. Zach was told they would not be released until he gave a statement implicating James, who he was told had already confessed. Zach also claimed to have been threatened with' prosecution for “buying too many guns” if he did not implicate his brother.
¶ 12. The jury convicted James of murder and he was sentenced to life imprisonment. James appeals from that judgment.
DISCUSSION
¶ 13. James raises several issues on appeal, but we find one dispositive: whether the circuit court erred in permitting the State to impeach its own witnesses without first showing surprise or unexpected hostility. Because this error requires a new trial, we will not address the other issues presented in James’s brief.
¶ 14. The leading Mississippi case on this issue is Wilkins v. State,
¶ 15. Our supreme court recognized that most other courts considering their analogues of Rule 607 had not explicitly required surprise or unexpected hostility. See id. at 321. However, in the supreme court’s view, they had achieved essentially the same result with a different justification: other courts forbid a party from using a prior inconsistent statement “under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible.” See id.
¶ 16. In today’s case, the prosecution never claimed surprise or unexpected hostility. However, perhaps because we review a trial court’s decision on the admissibility of evidence for an abuse of discretion, Young v. State,
The Court did find — although the Court did make a ruling at that time — the Court did find that the testimony of Zacherius James had — his testimony had become hostile to the State, although he was a State’s witness, and, of course, the Court had some background with this case. The Court is aware, and I think several months ago the Court was made aware of the difficulty the State was having securing the attendance of [Zach] as well as Ms. Samantha*699 Jackson, and so the Court was well aware of the potential that those witnesses may — their versions of events may change from those given to the trial, and for that reason, the Court felt that the tape would be admissible for purposes of impeachment, but the Court has taken caution to advise the jury that it’s for use of impeachment and impeachment only.
Given this record, on appeal the State does not argue surprise or unexpected hostility. It simply asserts that Zach and Samantha were hostile to the prosecution, which is undoubtedly true but not in and of itself sufficient. A party may call a hostile witness and ask him leading questions. See M.R.E. 611. But impeachment with a pri- or inconsistent statement is no ordinary leading question, and it carries the additional requirement that the hostility be unexpected. See Wilkins,
¶ 17. There is no clear evidence in the record of whether the State was surprised by Zach and Samantha’s testimony. The dissent contends that this absence of evidence requires us to affirm the trial court’s decision, but it misconstrues the burden of production, which is on the State. The proponent of evidence “has the burden of laying the proper foundation.” Brown v. State,
¶ 18. Having concluded the trial court erred, we must next turn to the question of whether the error is prejudicial. We will reverse on the erroneous admission of evidence only where “a substantial right of a party is affected.” Young v. State,
¶ 19. The State contends the admission of the impeachment evidence is harmless because its case against James was sufficient even if only the properly admitted substantive evidence is considered. That proof, however, is entirely circumstantial: James was angry with Ivory, he had threatened to kill and “burn” her, she was afraid of him, and he had been in the house before the attack and was gone afterwards. While this could sustain a conviction, the question before us is not
¶ 20. The dissent contends that Zach’s naming his brother as the man he saw outside the house was nonhearsay under Mississippi Rule of Evidence 801(d)(1)(C), which provides that a statement is not hearsay if: “The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... one of identification of a person made after perceiving the person.” If Zach had identified his brother, it would be admissible as substantive evidence under Smith v. State,
¶ 21. The State also contends the harm was mitigated or abrogated entirely by the trial court’s instructions to the jury that it could only consider the testimony for impeachment and not as substantive evidence. The trial court, sua sponte, instructed the jury on this point three times during the presentation of the impeachment evidence and once more when finally charging the jury. That the jury was properly instructed cannot be denied. Our concern, however, is the efficacy of the cautionary instructions.
¶ 22. We are well aware that under most circumstances, the jury is presumed to follow the instructions of the trial court. Sanders v. State,
¶ 23. The facts underlying the Wilkins decision are instructive as to the whether the error in our case is harmless. Wilkins was accused of killing his brother-in-law. Admissible evidence included, among other things, testimony that a coconspirator had told his wife Wilkins had “done it” and that he was burning Wilkins’s clothes because they were covered in “blood and brains.” See id. at 312. The wife’s testimony was admissible because the eoconspirator had made the statements to her in furtherance of a conspiracy. Id. at 317. When called to the stand by the State, the coconspirator denied that Wilkins had committed the murder and that he had burned Wilkins’s clothes. The prosecution then impeached him with unsworn statements he had made to a police investigator and a jailhouse snitch, consistent with the wife’s account. The Wilkins court found this to be error for reasons we have already discussed. Even though the improper impeachment was largely cumulative and the jury was properly instructed that it could not be considered as substantive evidence, the supreme court still found the error reversible. See id. at 316. Given that the case against Wilkins was much stronger than the case against James, we do not see how the error in James’s case can be harmless.
CONCLUSION
¶ 24. The State spent nearly half of its case-in-chief impeaching its two most important witnesses. This impeachment was improper, yet it put in front of the jury the most damning evidence in an otherwise circumstantial case. We cannot say with any confidence that this error was harmless. See Pitchford,
¶ 25. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.
Notes
. That rule was also adopted in Mississippi, though it is most frequently cited in the context that a prosecutor may not ask impeachment questions without a good faith basis. See, e.g., Flowers v. State,
Concurrence Opinion
specially concurring:
¶ 26. Justice Armis Hawkins, writing for the Mississippi Supreme Court in Wilkins, held that a party must still show surprise or unexpected hostility before impeaching its own witness, despite Mississippi’s then-recent adoption of Rule 607, which does not require either of these express showings. See Wilkins v. State,
¶ 27. But I write separately to point out that — while the supreme court in Wilkins emphasized that “since the adoption of the Mississippi Rules of Evidence” it has “followed the rationale of the federal courts” and prohibited parties from impeaching
¶ 28. Under Federal Rule of Evidence 607, “[a]ny party, including the party that called the witness, may attack the witness’s credibility.” This rule is almost identical to Mississippi’s counterpart, which provides that “[t]he credibility of a witness may be attacked by any party, including the party calling him.” M.R.E. 607. The reason these rules make no mention of either a showing of surprise or hostility is simple — these exceptions to the prohibition against attacking one’s own witness were no longer necessary after the Federal Rules of Evidence retreated from the common-law “voucher rule.”
¶ 29. Federal Rule 607 was promulgated to replace the common-law “voucher rule.” See Chambers v. Mississippi,
¶ 30. Rule 607 “was predicated on the modern reality that ‘a party does not hold out his witnesses as worthy of belief, since he rarely has a free choice in selecting them.’ ” Walker,
¶ 31. In light of this reality, under both the federal and state rules, any party, including the sponsoring party, may attack the witness’s credibility. F.R.E. 607; M.R.E. 607. And because Rule 607 did away with the voucher rule, federal courts have recognized Rule 607 also did away with the exceptions used to get around the voucher rule. See Walker,
¶ 32. Following the adoption of Rule 607, federal courts shifted from honing on surprise to focusing on the actual purpose for impeachment, asking whether the government is abusing Rule 607 by calling a witness who otherwise has no useful, ad
¶ 33. The Wilkins court claimed it was following “the rationale of the federal courts.” Wilkins,
Webster [ (the defendant) ] urges us ... to go beyond the good-faith standard and hold that the government may not impeach a witness with his prior inconsistent statements unless it is surprised and harmed by the witness’s testimony. But we think it would be a mistake to graft such a requirement to Rule 607, even if such a graft would be within the power of judicial interpretation of the rule. Suppose the government called an adverse witness that it thought would give evidence both helpful and harmful to it, but it also thought that the harmful aspect could be nullified by introducing the witness’s prior inconsistent statement. As there would be no element of surprise, ... the introduction of the pri- or statements [would be forbidden]; yet we are at a loss to understand why the government should be put to the choice between the Scylla of forgoing impeachment and the Charybdis of not calling at all a witness from whom it expects to elicit genuinely helpful evidence.
Webster,
, ¶ 34. Mississippi’s approach places parties in both civil and criminal cases between the very “rock and a hard place” our federal courts have rejected. By requiring surprise or unexpected hostility, Mississippi harkens back to the former hard-line position that a party cannot legitimately impeach one of its witnesses with an un-sworn ' statement if, prior to calling the witness, it suspects the witness may go south. But the very reason Rule 607 was adopted was the modern recognition that neither the State, nor most any party, has the luxury of picking its fact witnesses and should not have to vouch for everything they testify about.
¶35. The reality is that our lawyers and judges are all too aware that a witness who initially came forward with helpful evidence during an investigation may for various reasons — threats, intimidation,
¶ 36. Simply put, lack of surprise does not always equal subterfuge. And the mountain of federal and state authority from other courts undermines the suggestion that requiring surprise or unexpected hostility is the only workable method of ensuring impeachment evidence is properly admitted. See Wilkins,
¶ 37. As Judge Posner noted in Webster, “[t]he good-faith standard strikes a better balance.” Webster,
1138. For these various reasons, our modern rules of evidence sufficiently protect against inadmissible hearsay testimony being admitted under the ruse of “impeachment.” So there is really no reason for Mississippi to continue to graft on to Rule 607 the requirements of surprise or unexpected hostility — exceptions meant to soften the very common — law rule Rule 607 did away with.
¶ 39. Instead of looking for surprise or unexpected hostility, perhaps Mississippi’s Rule 607 analysis should focus on (1) whether the primary purpose of the State’s impeachment was indeed impeachment, and (2) whether the probative value of the impeachment evidence was outweighed by the unfair prejudice that may result if the jury were to use the impeachment evidence as substantive evidence. But with this said, as a member of our intermediate appellate court, I am certainly cognizant of my duty to apply Rule 607 as interpreted by the Mississippi Supreme
JAMES, J., JOINS THIS OPINION. ROBERTS, J., JOINS THIS OPINION IN PART.
. In holding that Maryland’s Rule 607 does not require a party to show surprise or unexpected hostility in order to impeach its own witness, Maryland's Court of Special Appeals relied on the following state cases that "have also refused to engraft the requirement of surprise”: Burgin v. State,
Only Mississippi was cited as "still" requiring surprise or unexpected hostility. Walker,
Dissenting Opinion
dissenting:
¶ 40. I would affirm the conviction and the judgment of the trial court in this case; thus, I respectfully dissent from the decision of the majority. An abuse-of-diseretion standard of review applies to our review of a trial court’s decision to admit or exclude evidence, including the decision to admit a prior inconsistent statement to impeach a witness. See M.R.E. 607.
¶41. Upon my review, the record shows no abuse of discretion or error in this case since James provides no showing of an improper purpose by the State in seeking to admit the inconsistent impeaching statements. An improper purpose cannot be inferred without supporting evidence. The record displays the reluctance of the witnesses to attend the trial against James. The trial judge determined the witnesses provided testimony differing from their pretrial statements, with no notice to the State that they would be changing their prior statements to law enforcement. The trial court also gave a limiting instruction to the jury as to how to consider the impeaching prior inconsistent statements. The trial court followed the case law and the rules of evidence in admitting the prior inconsistent statements of Zach and Samantha as impeachment evidence. See M.R.E. 607; Bush v. State,
¶ 42. As stated, James fails to show an intended purpose of subterfuge by the
¶ 43. Precedent allows unwilling witnesses to be impeached with their prior inconsistent statements with no refuge in perjury. As acknowledged, the record shows that these witnesses at issue were closely related to James and Ivory, who was so severely burned that she died. Zach is James’s brother, and Samantha is Zach’s girlfriend. They both lived with Ivory, Zach and James’s great aunt. The record shows that James threatened Ivory over the food she fed his dog. The record further shows Ivory feared James and his threats, and indicates that Zach and Samantha knew James had threatened Ivory and knew Ivory feared James. Zach and Samantha also saw the burns Ivory received.
¶ 44. Nothing in the record shows Zach and Samantha notified the State before trial of a change to their prior statements to law enforcement, and the State cannot be expected to know that a witness is willing to commit perjury. Without evidence of such, we cannot on appeal assume that the trial court’s findings reflecting the
¶45. As discussed, the trial judge’s findings show the reluctance of the witnesses to appear at trial. The trial court’s findings reflect that the court feared from the difficulty in securing attendance of these witnesses that they may change their version of the events. However, the trial court found that nothing established that the State knew the witnesses would change their stories. Reluctance to attend the trial is not alone evidence that witnesses will perjure themselves. See Wharton v. State,
¶46. There are also other permissible purposes for the admission and use of the prior inconsistent statements at issue. Zach had provided a prior statement, inconsistent with his testimony at trial, that identified James as the attacker and asserted that James had been seen outside the house immediately after the attack. Such a statement constitutes a prior identification, and since Zach testified at trial subject to cross-examination, such a statement fails to constitute hearsay. M.R.E. 801(d)(1)(C).
¶47. The Mississippi Supreme Court has also recognized another purpose, distinct from impeachment, for admission of a prior inconsistent statement. In Smith v. State, 25 So.3d 264, 272 (¶¶ 22-23) (Miss.2009), after determining that the admission of evidence under one particular evidentia-ry rule constituted error, the supreme court evaluated other proper bases for admission under the rules before determining error. The supreme court reversed
¶ 48. The Smith court continued to evaluate whether the statement at issue was admissible under the rules upon another basis is for admissibility. Id. at 272 (¶ 23). The court found that regardless of whether the witness was impeached, the prior statements ■ of the witness testifying at trial, subject to cross-examination, were admissible under Rule 801(d)(1)(C) as pri- or identification testimony. Id. at 273 (¶25). The witness previously had unequivocally identified the defendant as the shooter, but at trial, claimed that he did not see the defendant during the day of the shooting. Id. The court recognized that the witness’s prior statements to investigators contained more than just the prior identification; these statements referred to motive, threats, and drugs. Id. The court continued to explain that “the mere fact that the trial court committed error in an evidentiary ruling does not by itself warrant a reversal,” and explained that the evidence as a whole must be evaluated. Id. Finding other evidence in the record supporting the finding of guilt, the supreme court then held any error in admitting statements beyond those identifying the defendant to be harmless. Id. at (¶ 26). The Smith court also provided that the admission of statements going beyond mere identification, relating to motive and threats, was harmless error. Id.; see also Anderson v. State,
¶ 49. In this case, I respectfully submit that the trial court followed the rules of evidence in allowing impeachment of the witnesses’ .credibility via their own prior inconsistent statements as allowed under Rule 607. The record also shows that the trial court followed precedent in providing a limiting' instruction. The trial court’s finding that the prior inconsistent statements constituted proper impeachment of the witnesses, who were closely related to Ivory and James, shows no subterfuge by the State. The prior inconsistent statements were also admissible under our evi-dentiary rules for other proper purposes such as prior identification. I submit, therefore, that upon considering the record and evidence as a whole, the trial court committed no abuse of discretion in admitting the impeaching statements. The record shows no indication of subterfuge, and the trial court’s findings contradict James’s bare assertions of subterfuge. I
IRVING, P.J., JOINS THIS OPINION.
. The comment to Rule 607 explains that Rule 607 repudiates the old voucher rule. See John Strong, McCormick on Evidence § 38, at 142 (5th ed.1999) (inflexible insistence on showing surprise and affirmative damage before the government can impeach its witness would mean a return to the unsatisfactory mechanical approach that helped lead to the adoption of Rule 607); Joseph M. McLaughlin, Weinstein's Federal Evidence, § 607.02[2][c] (2d ed.1997) (the balancing test of Rule 403 now applies and is more flexible); see also M.R.E. 613.
. See Smith v. State,
. See Morgan v. State,
. The supreme court has not found subterfuge or abuse of discretion where the trial judge provided findings that witness was hostile, aligned with an adverse party, or feigned memory loss. Harrison v. State,
. Franklin v. State,
.In Harrison,
. Bush,
. Morgan,
. Bush,
. See M.R.E. 607.