Shorter v. State
| Docket Number: | 2008-KA-00112-COA Linked Case(s): 2008-KA-00112-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-24-2009 Opinion Author: MAXWELL, J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Murder - Admissibility of 911 calls - Attorney-client privilege - M.R.E. 502 - Crime-fraud exception - M.R.E. 103(a) - Spouse's out-of-court statements - M.R.E. 601 - Confrontation Clause - Manslaughter instruction - Weight of evidence Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-17-2007 Appealed from: RANKIN COUNTY CIRCUIT COURT Judge: Samac Richardson Disposition: CONVICTED OF MURDER AND SENTENCED TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: David Byrd Clark Case Number: 18141 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JOHNNY CHARLES SHORTER |
HUNTER NOLAN AIKENS |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Murder - Admissibility of 911 calls - Attorney-client privilege - M.R.E. 502 - Crime-fraud exception - M.R.E. 103(a) - Spouse's out-of-court statements - M.R.E. 601 - Confrontation Clause - Manslaughter instruction - Weight of evidence |
| Summary of the Facts: | Johnny Shorter was found guilty of murder and was sentenced to life. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Admissibility of 911 calls Shorter argues that the court erred in denying his motion in limine to exclude the contents of a 911 call from his attorney to a dispatcher for the Hinds County Sheriff’s Office made after Shorter called his attorney and told him he was going to kill a man. Shorter argues that the crime-fraud exception to the attorney-client privilege does not apply because he did not seek his attorney’s advice to aid him in the furtherance of a crime and that the judge improperly admitted the 911 recording based upon ethical rules rather than evidence rules. Generally, under M.R.E. 502(b), a client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client. The attorney-client privilege is broad, covering all information regarding the client received by the attorney in his professional capacity and in the course of his representation of the client. The privilege does not require the communication to contain purely legal analysis or advice to be privileged. The record does not contain any portion of the actual conversation between Shorter and his. The only indication of the topics discussed between the two are found in the attorney’s subsequent 911 calls. The attorney-client privilege applies to the information the attorney chose to reveal. Under M.R.E. 502(d)(1), no privilege exists where the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud. When a client seeks the attorney’s services to engage in a future crime or fraud, there must be proof that the crime or fraud actually occurred. This burden was undoubtedly met, given the abundant proof that Shorter called his attorney, revealed his intention to commit a murder, and shortly thereafter went through with it. Accordingly, the circuit court did not err in admitting the 911 call under this exception. Shorter argues that the attorney-client privilege cannot be waived by virtue of a rule of ethics and that the circuit judge essentially disregarded the rules of evidence in ruling on the admissibility of the 911 call. Although the circuit judge did not use the words “crime-fraud exception,” he did cite Rule 502, which specifically addresses the crime-fraud exception. In addition, any error is harmless under M.R.E. 103(a) in light of the overwhelming evidence of Shorter’s guilt. Shorter also argues that the court erred in admitting his wife’s statements made during her 911 call. He argues that admission of the recording violated spousal-competency principles and her statements from the 911 call were testimonial in nature and violated the Confrontation Clause. Since Shorter's wife did not testify as a witness, the question is whether M.R.E. 601 prevents a spouse’s out-of-court statements from being admitted into evidence. Because the statements were made during an ongoing emergency, the circuit court did not violate Rule 601 in admitting the 911 recording. With regard to Shorter's Confrontation Clause argument, when an out-of-court statement is testimonial, it is inadmissible unless the person who made the statement is unavailable to testify and the defendant had a prior opportunity to cross-examine such person. A statement is nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Here, it is clear that the statements were nontestimonial. There was an ongoing emergency taking place when the statements were made. A man who had been shot was barely alive, and the armed gunman who had pulled the trigger, Shorter, continued to remain in the house with his wife and her child. There is nothing in the record to establish involvement by the State to produce testimony with an eye toward trial. Issue 2: Manslaughter instruction Shorter argues the homicide was committed in the heat of passion, and the circuit court erred in refusing a manslaughter instruction. Denial of a manslaughter instruction is proper where the record is clear that the decedent was shot with malice or deliberate design. Before Shorter arrived, he phoned his attorney and informed him of his intention to kill someone. The record also indicates that at the time of the shooting the victim was unarmed and smoking a cigarette. Thus, there is abundant evidence that the killing at issue was done with deliberate design. Issue 3: Weight of evidence The jury was presented with overwhelming evidence of Shorter’s guilt. |
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