Newell v. State


<- Return to Search Results


Docket Number: 2009-KA-00701-SCT
Oral Argument: 05-17-2010
 

 

* This video is best viewed in the most current version of Google Chrome, Internet Explorer with Windows Media Player plug-in, or Safari (Mac Users).


Supreme Court: Opinion Link
Opinion Date: 12-02-2010
Opinion Author: Waller, C.J.
Holding: Reversed and remanded.

Additional Case Information: Topic: Manslaughter - Voicemail messages - Spousal privilege - M.R.E. 504(b) - Spousal incompetency - M.R.E. 601(a) - M.R.E. 401 - Toxicology results - Jury instructions - Section 97-3-15(3)-(4) - Castle Doctrine
Judge(s) Concurring: Carlson, P.J., Lamar, Kitchens, Chandler and Pierce, JJ.
Concur in Part, Concur in Result 1: Randolph, J., concurs in part and in the result without separate written opinion.
Concur in Part, Dissent in Part 1: Dickinson, J., concurs in part and dissents in part with separate written opinion
Concur in Part, Dissent in Part Joined By 1: Graves, P.J.,; Randolph, J. joins in part.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 02-26-2009
Appealed from: LOWNDES COUNTY CIRCUIT COURT
Judge: James Kitchens, Jr.
Disposition: Newell was convicted of manslaughter stemming from his altercation with and fatal shooting of Adrian Boyette in the parking lot of the Slab House bar in Lowndes County.
District Attorney: Forrest Allgood
Case Number: 2008-0293-CR1

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: James C. Newell, Jr.




OFFICE OF INDIGENT APPEALS: LESLIE S. LEE, PHILLIP BROADHEAD



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS, LISA L. BLOUNT  

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.

Topic: Manslaughter - Voicemail messages - Spousal privilege - M.R.E. 504(b) - Spousal incompetency - M.R.E. 601(a) - M.R.E. 401 - Toxicology results - Jury instructions - Section 97-3-15(3)-(4) - Castle Doctrine

Summary of the Facts: James Newell was convicted of manslaughter and sentenced to twenty years. He appeals.

Summary of Opinion Analysis: Issue 1: Voicemail messages Newell argues first that it was error to admit into evidence the two voicemail messages he had left on his wife’s phone, a recording of which was played for the jury during an investigator’s testimony. In the first message, Newell stated: “You’re probably up at the Slab [House], . . . Or over at Tony’s, but I bet you’re at the Slab, and you want me to come up there so Mike will whip [me]. But I tell you what I’m going to do: I’m fixing to come up there and pop a cap in [you] and hi[m], too.” In the second message, Newell stated, essentially, “never mind, neither one of you are worth it.” Newell argues that the voicemail messages are subject to spousal privilege under M.R.E. 504(b) and that his wife was not competent to aid investigators under the spousal competency standards in M.R.E. 601(a). A “confidential” communication is made in private and is not intended for disclosure. Before a privileged communication may be revealed, both spouses must consent. Under spousal competency standards, a spouse may not be compelled to reveal confidential communications during the discovery process in a case that involves the other spouse without the consent of both. Here, the same facts negate both spousal privilege and spousal incompetency. Newell’s message threatened to shoot his wife and another man. Because this threat would have been communicated to the other man or the police, it is not “confidential” under Rule 504. Additionally, both spouses waived Rules 504 and 601 by their respective actions. Investigators obtained the wife’s cell phone on Newell’s request. At the time he asked the officers to check her phone, he knew that damaging messages were there. His wife surrendered her phone and provided the password to her voicemail. Thus, neither Rule 504 nor Rule 601 applies. Further, the messages satisfy M.R.E. 401's broad definition of relevant evidence. Together, the messages explain the chain of events and affect the State’s theory on Newell’s state of mind, and Newell fails to show that their value was substantially outweighed by the danger of unfair prejudice. Issue 2: Toxicology results Newell argues that the trial court improperly refused to allow evidence of the victim’s toxicology results. The trial court ruled that evidence of the victim’s toxicology was irrelevant and invited speculation by the jury, because at the time Dr. Hayne testified, no evidence had been brought forth to show that the victim had been acting violently. But when Dr. Hayne took the stand, an eyewitness already had testified that the victim and Newell had been in a “heated argument,” and that the victim had shut the door of Newell’s truck on Newell’s leg. And the officers who had overheard Newell’s conversation with the investigator all had testified that Newell had told the investigator that the victim had beaten his truck windows and cursed at him. In determining whether the defendant acted in self-defense, it is competent to show all the circumstances under which the fatal difficulty occurred, and which would in any manner have affected the defendant’s motives and apprehensions, or indicate the mental state of the deceased. The defendant may show the deceased’s intoxication as bearing upon his motive or intention and the defendant’s belief in the imminence of his danger. Intoxication evidence offered for this reason is admissible so long as its relevance has been established by the time the evidence is offered. At the time Dr. Hayne testified, the relevance of the victim’s toxicology results had been established. The victim’s toxicology results were relevant to show all the circumstances under which the fatal difficulty occurred, and which would in any manner indicate the mental state of the deceased. The exclusion of the evidence prevented Newell from fully presenting his theory of the case to the jury and thus adversely affected his right to a fair trial. Therefore, the exclusion of the toxicology evidence is reversible error. Issue 2: Jury instructions Newell challenges the trial court’s refusal of his separate jury instruction defining the specific elements of self-defense and several separate instructions on the “Castle Doctrine.” A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. The trial court did not abuse its discretion in refusing the self-defense instruction, since Newell’s self-defense theory was covered fairly elsewhere. Section 97-3-15(3)-(4), Mississippi’s “Castle Doctrine,” includes two prongs. First, under subsection (4), if the defendant is in a place where he had a right to be, is not the immediate provoker and aggressor, and is not engaged in unlawful activity, he has no duty to retreat before using defensive force. And second, if the jury finds that any of the circumstances in subsection (3) are satisfied, the defendant who uses such defensive force is presumed to have reasonably feared imminent death or great bodily harm or the commission of a felony upon him. The “no duty to retreat” rule, found in Newell’s proposed instructions, was covered fairly elsewhere. But Newell also argues that the trial court erroneously refused his proposed instruction which he asserts correctly defines the new statutory presumption in section 97-3-15(3). The meaning and application of the newly revised “Castle Doctrine” presumption and its exceptions is a matter of first impression. Newell’s testimony alone appears to raise the presumption in section 97-3-15(3). Although section 97-3-15(3) does not expressly refer to the location of the person who uses defensive force, it does refer to the “vehicle which he was occupying.” And section 97-3-15(3) also states that the person who uses defensive force is entitled to the presumption only “if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering . . . A[n] . . . Occupied vehicle . . . Or if that person . . . Was attempting to unlawfully remove another against the other person’s will from that . . . Occupied vehicle . . . .” So the statute requires the person who used defensive force to have been “occupying” his vehicle, but it does not expressly refer to when exactly that person must have used defensive force. Perhaps the person who uses defensive force must be occupying his vehicle at the moment he uses defensive force. This is the construction given by the trial court. Under this interpretation, Newell would not be entitled to the presumption in section 97-3-15(3). Newell himself testified that he had exited the truck and was outside it when he shot the victim. So, at the moment Newell used defensive force, the victim could not have been in the process of entering an occupied vehicle, because Newell’s truck was no longer occupied. And the victim also could not have been attempting unlawfully to remove Newell from an occupied vehicle against his will, because Newell was already outside the truck. But the statute also may mean that the person who uses defensive force must be occupying his vehicle when the person against whom defensive force is used takes the actions that result in its use. This is the most reasonable interpretation of the statute. The first interpretation would require vehicle occupants to wait for the attacker to gain entry to the vehicle before defending themselves or to open the door or window to do so, which would provide easier access for the assailant. Also, the first interpretation does not account for a vehicle occupant’s need to exit the vehicle to use defensive force to protect another occupant from the assailant’s attack. If the occupant is still in danger after exiting the vehicle, and he is still “in the immediate premises thereof[,]” he should be allowed to use reasonable force to defend against the danger and still be presumed to have acted in reasonable fear of imminent death or great bodily harm. If the jury believed Newell’s version of the events, he would have been entitled to the presumption in section 97-3-15(3). While not artfully drawn or properly organized, Newell’s proposed instruction states the law regarding the statutory presumption as it applied to the facts of this case. And the instruction is the only instruction proposed by either side that outlines the presumption in section 97-3-15(3). The jury should have been instructed that, if it believed Newell’s version of the events surrounding his altercation with the victim, then it should presume that Newell used defensive force against the victim because he “reasonably feared imminent death or great bodily harm, or the commission of a felony upon him . . . Or against the vehicle which he was occupying . . . .” Newell’s instruction would have accomplished this, so the trial court abused its discretion by refusing the instruction.


Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court