Petition for Writ of Certiorari — Mississippi v. Parker

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87-122

No. 87-

" JOSEPH F. SPANIOL, JR.

_ Supreme Court,

EIL

JAN 111988

CLERK

In The Supreme Court of the United States

@ctober Germ, 1987

THE STATE OF MISSISSIPPI,

PETITIONER

VERSUS

MARK ANTHONY PARKER,

RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

MIKE MOORE

ATTORNEY GENERAL

STATE OF MISSISSIPPI!

WAYNE SNUGGS

ASSISTANT ATTORNEY GENERAL

(COUNSEL OF RECORD)

CHARLES W. MARIS, JR.

SPECIAL ASSISTANT ATTORNEY GENERAL

(OF COUNSEL

OFFICE OF THE ATTORNEY GENERAL

POST OFFICE BOX 220

JACKSON, MISSISSIPP! 39205

TELEPHONE: (601) 359-3680

QUESTION PRESENTED FOR REVIEW

Does Chambers v. Mississippi, 410 U.S. 284

(1973), require reversal of a conviction in a

case on which the excluded hearsay statement is

not shown to be trustworthy and is in fact made

under circumstances which severely undermine

confidence in its reliability?

TABLE OF CONTENTS

PAGE

Question Presented for Review..............-. 4

Table of Contents...... eee ee eee eee e ees 44

Table of Authorities.........-.-.eeeeeeeees 433%.

Opinion Below... .....cccscceecccersecceccens 2

ae EE Cee ae ee tw 2

Constitutional Provision Involved......... 2-5

Statement of the Case

A. Procedural History......... 4-5

B. Substantive Facts.......... 5-7

Reason for Granting the Writ.............. T-6

PPPRRUeeeeeVTecrT. oy ..-8-11

hE Peewee rerer er ere re ee eo 12

Certificate of Service. ....... cee ccccsecee 13

on Tan

TABLE OF AUTHORITIES

PAGE

CASES

United States Supreme Court

Chambers v. Mississippi, 410 U.S. 284

95 §.Ct. 1038, 35 L.Ed.2d 297 (1973)..... 7-11

-iii-

NO. 87-

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

THE STATE OF MISSISSIPPI,

Petitioner,

vs.

MARK ANTHONY PARKER,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF MISSISSIPPI

The State of Mississippi respectfully

requests the Supreme Court of the United States

to grant this Petition for Writ of Certiorari

to the Supreme Court of Mississippi.

—

PINION B

The opinion of the Supreme Court of

Mississippi, review of which is sought herein,

is published officially in Mark Anthony Parker

vs. The State of Mi ippi, 514 So.2d 767

(Miss. 1986).

JURISDICTION

The judgment was rendered on duly 16,

1986, and the Petition for Rehearing was denied

on November 12, 1987.

The Petitioner believes that this Petition

is filed timely and that jurisdiction to review

the said judgment is conferred on this Court by

authority of 28 U.S.C. 81257 (3).

CONSTITUTIONAL AND STATUTORY

P I VED

The Fourteenth Amendment to the United

States Constitution provides as follows:

———————

SECTION 1. All persons born or

naturalized in the United States,

and subject to the jurisdiction

thereof, are citizens of the United

States and of the State wherein

they reside. No State shall make

or enforce any law which shall

abridge the privileges or

immunities of citizens of the

United States; nor shall any State

deprive any person of life,

liberty, or property, without due

process of law; nor deny to any

person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

A. Procedural History: The Grand Jury

of the Second Judicial District of Harrison

County, Mississippi, on May 27, 1983, indicted

Mark Anthony Parker for the murder of Darrell

Jay Jones. Parker's first trial ended in a

mistrial when the jury was unable to agree on a

verdict. Parker was retried and found guilty

of the lesser-included offense of

manslaughter. He was thereafter sentenced by

the Circuit Court of the Second Judicial

District of Harrison County to serve a term of

twenty years in the custody of the Mississippi

Department of Corrections.

At the second trial, Parker sought to call

as a witness one Alicia Rainey, who would

testify that she Xeard one T. C. Carter

implicate himself in the murder of Darrell Jay

Jones. The trial court refused to allow the

testimony. On appeal, Parker assigned that

ruling as error. The Mississippi Supreme Court

held that the trial court’s ruling in that

regard violated this Court’s holding in

rs__v. Mi i », 410 U.S. 284, 93

§.Ct. 1038, 36 L.Ed.2d 297 (1973).

B. Substantive Facts: On a city street

in Biloxi, Mississippi, on April 26, 19835, a

dispute arose between the occupants of a red

Subaru, Mark Anthony Parker, Karl Thompson, and

T. C. Carter, and the occupant of a blue

Toyota, Darrell Jay Jones. During the ensuing

scuffle, Jones became covered with gasoline

from a@ jug which Parker, Thompson and Carter

had in their car. Jones then got back into his

Car. Parker then emptied the remainder of

gasoline from the jug into Jones car through

the front passenger-side window. According to

witnesses, Parker then threw a match or some

other source of ignition ‘into Jones’ car,

setting Jones on fire. Jones was severely

burned and died sixteen days later.

At his first trial, Parker called

fourteen-year-old T. C. Carter to the stand.

Carter testified generally to the events of

April 26, 1983, but denied any Knowledge as to

how the fire started. He was then asked

whether or not he had made a statement to one

Alicia Rainey, at a certain time and place, to

the effect that he, Carter, was about to light

&@ joint and that he dropped "the match."

Carter denied that he ever made such 4a

statement. Parker then called Alicia Rainey,

who testified that Carter in fact had made such

& statement. As stated this trial ended in a

hung-jury mistrial.

At Parker's second trial Parker informed

the trial court that T. C. Carter was out of

the country and therefore unavailable to be

called as a witness. Parker requested that he

be allowed to place Rainey on the stand, even

in Carter's absence, to testify as to what she

allegedly heard Carter say. The court refused |

to allow Rainey to testify, but allowed Parker

—

ee

to examine her outside the presence of the

jury. Rainey testified to the following. On

March 7, 1983,1 while she and T. C. Carter were

at a community center dance, she asked T. C.

Carter about the incident involving Jones.

Carter told her that “he was about to light a

joint and he dropped the match and ran in front

of Church's Chicken." He also told her that,

"The mother fucker should have died because he

Slapped him." When people at the dance began

calling Carter the “flamethrower,” Carter is

said by Rainey to have shouted, "Don’t call me

the flamethrower, call me the destroyer."

REASON FOR GRANTING THE WRIT

In its opinion in this case the

Mississippi Supreme Court has read Chambers v.

1 This date is before the date of the

incident which resulted in the death of Darrell

Jay Jones, April 26, 1983. Yet, Rainey

—— adamant that March 7 was the correct

ate.

Mississippi too broadly in holding said case to

mandate reversal where there is no showing of

the trustworthiness of the hearsay statements

sought to be introduced.

ARGUMENT

The Mississippi Supreme Court held in this

case that Chambers required the trial court

first to admit into evidence the testimony of

T. C. Carter from the first trial? and second,

to allow the testimony of Alicia Rainey. In so

holding, the Mississippi Supreme Court ignored

the admonitions of Chambers regarding the

trustworthiness of the excluded testimony.

This Court in Chambers held that the excluded

hearsay statements therein were “made and

subsequently offered at trial under

a The statements of the Mississippi

Supreme Court in its opinion in this case to

the -contrary notwithstanding, Parker did not

attempt to introduce Carter’s former

testimony. § For purposes of this petition,

however, we will assume that he did so.

a

circumstances that provided considerable

assurance of their reliability.” 410 U.S. at

300. As further stated by this Court

The testimony rejected by the trial

court here bore persuasive

assurances of trustworthiness and

these were well within the basic

rationale of the exception for

declarations against interest.

410 U.S. at 302

It will be remembered that Chambers was

convicted of shooting a police officer as the

officer attempted to make an arrest in a

crowd. The excluded hearsay statements were

the confessions, to three different people, of

one McDonald that he had shot the officer. The

facts showing the trustworthiness of McDonald’s

confessions were many:

1) He had signed a written sworn

confession.

2) The excluded confessions were

made to three different friends at

different times.

3) A lifelong friend of McDonald

testified that he saw McDonald.

shoot the police officer.

4) Another witness testified that

he saw McDonald immediately after

the shooting and that McDonald had

@ gun in his hand.

5) Another witness refuted

McDonald‘s testimony concerning his

whereabouts at the time of the

shooting.

6) A gun dealer testified that

McDonald had purchased a 22

caliber revolver, the caliber of

weapon used to shoot the officer,

about a year before the shooting.

He further testified that McDonald

purchased another .22 three weeks

after the shooting.

In contrast, the facts are as follows

the case at bar:

1) with the exception of Parker's

testimony® there is no evidence

that Carter was in a position to

have started the fire. In fact,

. two defense witnesses testified

that Carter was standing in the

parking lot of cChurch’s Chicken

when the fire started.

S Parker's testimony placed Carter at t

driver‘'s side of Jones’ car when the fi

started

2) Carter allegedly confessed only

one time, to another fourteen-

year-old, at a dance, in a manner

aptly termed by Justice Dan Lee in

his dissent as “more suggestive of

braggadocio than candor."

514 §S0.2d at 777.

3) State witnesses testified that

they saw the flame in Parker’s

hand.

Thus, Carter was not in 3 position where,

at a time when, he could have started the

fire. No independent evidence corroborates the

alleged confession; in fact, the evidence

points squarely to Parker and Parker alone.

Furthermore, the statements attributed to

Carter by Rainey -hardly constitute a

confession. Finally, it strains credulity that

Carter would be lighting a joint in the middle

of a busy public street.

It is respectfully submitted that the

Mississippi Supreme Court ruled incorrectly in

finding that Chambers mandates reversal of this

case.

atin

CONCLUSION

For the foregoing reasons, the Petitioner

respecfully requests the Court to grant this

Petition for Writ of Certiorari to the Supreme

Court of Mississippi to review the decision in

this case.

Respectfully submitted,

MIKE MOORE

ATTORNEY GENERAL

STATE OF MISSISSIPPI

WAYNE SNUGGS

ASSISTANT ATTORNEY GENERAL

COUNSEL OF RECORD

CHARLES W. MARIS, dR.

SPECIAL ASSISTANT ATTORNEY GENERAL

OF COUNSEL

ve: Weyne- pn

WAYNE S8#GGS Vd

ASSISTANT ATTORNEY GENERAL

Office of the Attorney General

Post Office Box 220

Jackson, Mississippi 39205

Telephone:

(601) 3589-3680

«i2-

CERTIFICATE OF SERVICE

I, Wayne Snuggs, an Assistant Attorney

General for the State of Mississippi, do hereby

certify that all parties required to be served

have been served by this day causing to be

mailed via United States Postal Service,

; 4

first-class postage prepaid, three true and

correct copies of the foregoing PETITION FOR

WRIT OF CERTIORARI to each of the following:

William E. Tisdale

Attorney-at-—Law

Post Office Box 548

Biloxi, Mississippi 39533

Keith Pisarich

Attorney-at-—Law

Post Office Box 1911

Biloxi, Mississippi 39533-1911

This the llth day of January, 1988.

sro espe Lonwcygs

a3S~

MARK ANTHONY PARKER

STATE OF MISSISSIPPI

NO. 56287.

Supreme Court of Mississippi.

July 16, 1986

Rehearing Denied Nov. 12, 1987.

~~

MARK ANTHONY PAREER 2

STATE OF MISSISSIPPI

NO. 56287.

Supreme Court of Mississippi.

July 16, 1986.

Defendant was convicted in the Circuit

Court, Harrison County, Kosta N. Vlahos, d.,

of manslaughter and he appealed. The Supreme

Court, Robertson, dJg., held that refusal to

allow defendant to present testimony that

another person had confessed, even bragged

about, -throwing fatal match at fatal burn

victim and, thus, to impeach other person's

subsequent recantation was reversible error.

Reversed and remanded.

Dan M. Lee, J., dissented and filed opinion in

which Walker, C.J., Hawkins, P.d., and Griffin,

J., joined.

-A2-

1. Homicide - 268.

Testimony indicating that witnesses saw a

flame in defendant’s hand, that defendant was

On passenger side of victim’s automobile at

window, and that a fire began on passenger side

and moved quickly to engulf victim after

defendant made a flicking motion with his hand

was sufficient to make a submissible case

against defendant on charge of manslaughter

arising from fatal burns sustained by victin.

2. Criminal Law - 366(3)

Testimony of police officer that when he

arrived approximately two minutes after

receiving call, he asked victim what had

happened and victim responded, “I can’t believe

they set me on fire,“ was admissible under res

gestae exception to hearsay rule in

manslaughter prosecution arising from fatal

burn injuries sustained by victin.

-A3-

3. Criminal Law - 438(6)

Photographs showing fatal burn victim as

rescuers attempted to cut his clothes from his

body after fire was put out were admissible in

Manslaughter prosecution where photographs

showed other people present at time in question

so as to be descriptive of events described at

trial.

4. Criminal Law - 543(1)

Foremost requirement of former testimony

exception to hearsay rule is that witness or

declarant be unavailable.

5S. Criminal Law - 541

Under former testimony exception to hearsay

rule, former testimony must have been given

under oath, party against whom testimony is

offered must have had a reasonable opportunity

for cross-examination, there must have been an

identity of parties in former trial and in

trial in which testimony is offered, there must

~A4-

have been an identity of issues, and witness

must be _ unavailable at time of second

proceeding.

6. Criminal Law - 543(1)

Testimony of witness from first trial,

whether in transcribed or in tape-recorded

form, was admissible under former testimony

exception at second trial when witness was

shown to be otherwise unavailable and defendant

wished to impeach such testimony through

introduction of a live witness.

7. Witnesses -380(3)

Defendant could not be precluded at second

trial from calling a live witness for purpose

of impeaching testimony at first trial of an:

otherwise unavailable witness.

8. Criminal Law 1170 1/2(1)

Witnesses - 380(3)

Refusal to allow defendant to present

testimony that another person had confessed,

-A5-

even bragged about, throwing fatal match at

fatal burn victim and, thus, to impeach other

person’s subsequent recantation, made at prior

trial, was reversible error.

William E. Tisdale, Sekul, Hornsby 8 Teel,

Keith Pisarich, Cavanaugh & Pisarich, Biloxi,

for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Charles

W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson,

for appellee.

En Banc.

ROBERTSON, Justice, for the Court.

Be

For far too many years the people of this

state have paid dearly for their racial

prejudices, animosities, hatreds. A not

insignificant part of that price was exacted on

the evening of April 26, 1983, in Biloxi,

Mississippi, when the white and black occupants

of two moving vehicles apparently not knowing

-A6-

and having never before seen one another began

hurling and returning racial epithets at each

other. In the end, one was engulfed in flames

and died an agonizing lingering death while the

other has been convicted of manslaughter.

This appeal from the second trial on a

murder indictment--the first having resulted in

a hung jury--questions whether the trial court

may have deviated from the directives of the

United States Supreme Court in Chambers v.

Mississippi, 410 U.S. 284,93 §.Ct. 1038, 35

L.Ed.2d 297 (1973). Because the trial judge

refused to allow the Defendant to present

testimony that another had confessed, even

bragged about, throwing the fatal match--and

thus to impeach the other’s subsequent

recantation, Chambers mandates reversal.

II.

In the middle of evening rush hour traffic

on April 26, 1983, two automobiles were

-A7-

traveling in a easterly direction on Division

Street in Biloxi, Mississippi. A red Subaru

was driven by Karl Thompson and occupied by

Mark Anthony Parker and T. C. Carter, all black

persons. Parker was the Defendant below and is

the Appellant here. The driver and sole

occupant of a blue Toyota was Darrell Jay

Jones, who was white.

The occupants of the two vehicles engaged

in a fatal altercation at the corner of

Caillavet Street and Division Street in Biloxi,

Mississippi. In the end, the driver of the

blue Toyota, Darrell Jay Jones, was engulfed in

flames and jumped from his car, a living torch,

and proceeded to burn until witnesses rolled

him in a blanket and subdued the fire with a

fire extinguisher. Jones died pixteen days

later and Mark Anthony Parker, one of the

occupants of the other car, was charged with

murder.

-A8-

There were numerous eyewitnesses to

various portions of the ultimately fatal

altercation. Billy Ray Ainsworth, an air

conditioning and refrigeration man on his way

home from work, stopped at Cheaper’s Chicken!

at the corner of Caillavet and Division Streets

and was the second car in line at the drive-in

window when he heard an argument and directed

his attention to two cars in front of him at

the traffic light.

He heard “fussing or complaining, yelling

and screaming" and saw some object being thrown

between the two cars. He saw the occupant of

the blue car (Jones) get out of his car and

walk over to the car with the three occupants

1 Cheaper’s Chicken was formerly and is

now Popeye’s Chicken, several witnesses refer

to it as Popeye’‘s. Church’s Chicken is located

at the same intersection and is referred to

also.

=

and begin swinging through the window on the

passenger side of the car. According to

Ainsworth, the one in the back seat (Mark

Parker) was the first one out of that car.

Parker and Jones were swinging at each other

and shouting racial slurs and then they locked

up and started wrestling on the ground. At

this point, according to Ainsworth, the red

car, with only the driver in it, pulled onto

Caillavet Street and parked. After the driver

parked the car he got out and just stayed by

the car.

At this point Jones, whom Ainsworth claims

“looked like he started the fight", got up from

the wrestling and headed back to his car. One

of the black men [Parker] began banging on the

passenger side of the blue car and reaching

-A10-

through the window at Jones. The man could

not reach Jones from the passenger side and he

started around the car to get to him at the

driver’s side. On his way around the car he

tripped on an object which Ainsworth identified

as the one they had been throwing at each other

in the very beginning, a plastic jug of

gasoline. When he came back to the passenger

side, he slung it in the car.

Ainsworth saw the man [Parker] bend down,

make an arching motion between his legs, then

rise up and throw a lighted book of matches

into the window of the blue Toyota, Jones’

~All-

car. The car ignited immediately and blew the

man back away from it.

Joycelyn Marie Herbert and Cheryl Nehling

were the occupants of the car in front of

Ainsworth at the drive-in window. Cheryl had

put her coke on the dashboard and when the car

pulled out from the drive-up window, the coke

had spilled. While cleaning up the spilled

drink, a “bunch of hollering" drew attention.

_docelyn saw a black [Parker] and a white

(Jones] throwing punches at each other.

Another boy started throwing gas out of a

plastic bottle on the white boy.

According to Jocelyn the white boy went

back to his car and hollered that he had had

enough and got into the car and closed the

door. One of the black boys came around to the

passenger side and was standing by the window

of the blue car, "It looked like he was

throwing gas in the car", the white boy was

-Al2-

throwing his arm out at the black boy. As the

car and the boy in it caught on fire, the black

fellow hollered "Burn, mother fucker, burn".

The White boy got out of the car and

rolled on the ground and then ran up to

Jocelyn, "All I could see was that boy burning

right in front of me and he was crying and he

was screaming for help--he was hollering to

help him and I couldn’t do anything. I didn’t

have anything to help hin." At this point

someone threw a blanket over him and someone

else came with a fire extinguisher and put him

out.

Jocelyn’s friend, Cheryl Ann Nehlig, was

driving the car when the two stopped at

Cheaper’s. She was standing outside the car

attempting to clean up the spilled coke when

she heard the two cars pass her and could hear

the arguing among the individuals in the cars.

She saw the white male (Jones) get out of his

-A1S-

car and walk over to the passenger side of the

front seat of the red car and put his hands on

the window and stoop down and say something to

the man in the car and then turn around and go

back to his own car. The black male (Parker)

that was sitting in the back seat on the

passenger side followed him back over to this

car and started fighting.

The two began arguing and fighting and

Parker took Jones and threw him across the

front of the car. Jones got up and threw a

karate kick at Parker and the two went down on

the ground and began fighting on the ground.

Parker was beating Jones’ head on the ground

and the smaller black guy went over to the two

with a plastic bottle of gas and began ecarine

it on the length of Jones’ while Parker held

him down. When they got up, Jones said, "I've

had enough, I’m leaving," and got in his car

and shut the door.

-Al4-

Parker approached the passenger side of

Jones’ car with a jug of gas and was throwing

what was left of the gas into the car and Jones

was making gestures with his hands trying to

stop him from pouring the gas. "The next thing

I saw was the Defendant looked like he had a

match in his hand and as to strike and just

before the struck he said, ‘Burn, you mother

fucker, burn.’ And, the next thing the car

just burst into flames."

Nehlig said that Parker was kneeling down

a bit and used his right arm for throwing the

match in after he struck it. At this point

Jones got out of the car:

he started running toward my friend

and I and he started hollering, ‘Help

me, help me, and he rolled on the

ground and got back up and just kept

coming toward us and he was so close

that you could reach out and touch

him...His whole body was on fire.

The flames shot up. He looked three

times taller than he was and his

whole face--just like his bones--

flames in his face, you couldn’t see

-A15-

anything else. All between his legs

and his whole body.

Brent Hunter was working at the

Cheaper’s/Popeye’s on the day of the incident.

He knew Parker, Thompson and Carter and watched

the fight from the window of the fast food

restaurant. He saw Carter and Thompson jump

into the fight and then after Parker began

seriously fighting, the other two just stood

around and watched. When Jones got back into

his car, Hunter saw him throw the gas container

out the window of the car and saw Parker throw

it back in. The two were tussling over it when

the car burst into flames. At this point

Thompson and Carter were not standing by the

vehicle but were further back closer to the

restaurant. Hunter testified that he did not

see a flame or anything else in Parker's hand

and that when the fire first started, Parker

jumped back\ away from the car and, “at first he

went around to help the guy and then he ran".

Carter also ran and Thompson got in the car and

left. Hunter got the fire extinguisher out of

the store and helped put out the fire.

Four other persons--Jerald Woelk,

Charlotte Peterman, and her mother, Della

Sinquefield, and Daniel Hokamp--witnessed the

incident and in rough measure gave testimony

corroborating that of the witnesses described

above.

B.

Procedurally, this criminal prosecution

had its genesis on May 27, 1983, when the Grand

Jury of Harrison County, Mississippi, returned

an indictment charging Mark Anthony Parker with

the murder of Darrell Jay Jones. Some four

months later the matter was called for trial at

the conclusion of which the jury announced that

it could not agree upon a_ verdict. On

September 30, 1983, the trial judge declared a

mistrial.

-A1L7-

The matter was called for trial a second

time and on May 25, 1984, the Circuit Court

jury found Parker guilty of the lesser in-

Cluded offense of manslaughter. Thereafter the

Circuit Court sentenced Parker to the custody

of the Mississippi Department of Corrections

for a term of twenty (20) years. Miss. Code

Ann. 8697-3-25(1972). Following the usual

post-trial motions, Parker has perfected his

appeal.

Itt.

Parker argues first that the State failed

to establish the origin of the fire that killed

Darrell Jay Jones and that, therefore, he is

entitled to an acquittal as a matter of law.

(1) As noted above, testimony which

implicated Parker in igniting the fire was

substantial. Witnesses Ainswroth and Nehlig

both testified that they saw the flame in

Parker’s hand. Witness Herbert testified that

-A18-

Parker was on the passenger side of the car at

the window and while she did not see a flame,

the fire began on the passenger side and moved

quickly to engulf Jones. This was sufficient.

Under our system, once a jury has returned

@ verdict of guilty in a criminal case that

verdict must be allowed to stand if there

appears in the record substantial, credible

evidence consistent with it. Considering the

evidence in the light most favaroable to the

verdict, if we cannot say that no reasonable

hypothetical juror could find beyond a

reasonable doubt that the defendant was guilty

as charged, we have no authority but to

affirn. See, e.g., Robinson v. State, 475

So.2d 957, 964 (Miss. 1985); Pearson v. State,

428 So.2d 1361, 1363 (Miss. 1983); Gathright

v. State, 380 So.2d 1276, 1278 (Miss. 1980).

No error lies here.

-A19-

IV.

Parker protests the admission of the

testimony of Officer Timothy P. Lamey that when

he arrived approximately two minutes after

receiving the call, he asked the victim, Jones,

what happened and Jones responded, "I can’t

believe they set me on fire." The trial judge

held this comment admissible under the res

gestae exception to the hearsay rule. Parker

argues that, in order for a statement to

qualify under the res gestae exception, it must

be (1) a startling event that renders reflected

thought inoperative and (2) a spontaneous

reaction to the occurrence and not a result of

reflective thought. Parker argues that because

the statement was made in response to the

question, "What happened," that it was by

definition not sufficiently spontaneous’ to

qualify for admission under the res gestae

exception.

-A20-

[2] In FPuson v. State, 415 So.2d 734, 755

(Miss. 1982), we held admissible under the res

gestae exception to the hearsay rule an almost

identical statement. In that case the

defendant had shot his wife and she was laying

in the street when the constable arrived. He

asked her, "Well, who shot you?" She answered,

“Chuck [her husband] shot. wme.: These

statements were held admissible under both the

dying declaration and res gestae exception to

the hearsay rule. In the case at bar the

victim lived for sixteen days. Therefore, the

dying declaration exception has no

application. See Clark v. State, 398 So0.2d

229, 230 (Miss. 1981). But the admission as

res gestae was proper.* If the conversation

2 The Mississippi Rules of Evidence,

effective January 1, 1986, contain no res

gestae exception to the hearsay rule. See

Official Comment to Rules 803(1) and (2). To

be admissible, statements such as that at issue

here must come within the present sense

impression or excited utterance exceptions.

Rule 803(1) and (2), Miss. R.Ev.

-A21-

had taken place at a time less closely

connected with the crime--as was the case in

Thompson _v. State, 339 So.2d 982,983 (Miss.

1976) wherein the witness was with the victin

for 30 minutes before asking him if he knew who

did it--the statement would not have been res

gestae.

Under the circumstances the statement was

properly admitted. The assignment of error is

denied.

v.

Because Parker stipulated to the identity

of the deceased and the cause of death, he

argues that under Sharp v. State, 446 So.2d

1008 (Miss. 1984) that the photographs should

not have been admitted into evidence. Sharp

holds:

Photographs of the victim should not

ordinarily be admitted into evidence

where the killing is not contradicted

or denied in the corpus delicti and

the identity of the deceased has been

established. te, 4235

S0.2d 624, 6827 (Miss. 1982); see also

Williams v. State, supra.

Additionally, gruesome photographs

which have no evidentiary purpose and

which only arouse the emotions of a4

jury should not be admitted....

446 5S0.2d at 1009.

The photographs, S-4 through 5-7, show the

victin as rescuers attempt to cut his clothes

from his body after the fire was put out.

(3) The record reflects that State

Exhibit 4 was admitted along with State

Exhibits 1,2 and 3 during the direct testimony

of Tim Lamey, and State’s Exhibit 7 was

introduced during the ocross-examination of

Witness Daniel Hokamp and admitted for

identification purposes. State’s Exhibits 5

and 6 were never formally received into

evidence.Some “probative value” is the only

requirement needed to buttress a trial judge's

decision to

allow photographs into evidence. Johnson vy.

State, 476 So.2d 1198, 1206 (Miss. 1988);

Swainer _v. State, 473 So.2d 180, 185 (Miss.

1985); Cabello v. State, 471 So.2d 352, 341

(Miss. 1985); Holiday v. State, 455 So.2d 750,

752 (Miss. 1984); Billiot v. State, 454 So.2d

445, 460 (Miss. 1984). Both pictures admitted

into evidence have other people present therein

and are therefore descriptive of events

described at trial. The trial judge was within

his discretion in admitting these pictures into

evidence and no error lies here.®

3

Evidence, admission of photographs in homicide

prosecutions will be governed by Rules

401-403. In the end the question, committed to

the sound discretion of the trial judge, will

be whether the probative value of such

photographs is substantially outweighed by the

danger of unfair prejudice. Rule 403, Miss.

R.Ev.

-A24-

Under the new Mississippi Rules of .

nctitd bala itt cee co a oe eT O ER)ENES

VI.

Parker’s- dispositive assignment of error

is that the trial court

erred in overruling Appellant's

motion for a transcript of the first *

trial and erred in refusing to allow

the jury to hear the testimony of

Alicia Rainey.

The impact of this error, we are told, was that

the jury decided Parker’s fate unaware of a

prior statement by T. C. Carter that he,

Carter, threw the match that ignited the fire

that killed Darrell Jay Jones. The assignment

is undergirded by Chambers v. Mississippi, 410

U.S. 284, 93 &.Ct. 1038, 35 L.Ed.2d 297 (19735)

which subjects our rules of evidence to

substantial due process restrictions.

At Parker‘s first trial--which ended in

amistrial as the jury was unable to agree upon

&@ verdict T. C. Carter, Parker's young

companion, appeared and testified. Carter

disputed the testimony of Parker in several

respects. Specifically, Carter was asked if he

ever told Alicia Rainey that he, Carter, had

started the fire. Carter denied making any

such statement. Still at the first trial,

-A25-

Parker‘’s counsel then called Alicia Rainey who

impeached Carter on this criticial point.

Alicia was fourteen years old at the time, as

was Carter. She testified that Carter told her

about the incident at a dance at the Division

Street Community Center. She asked Carter what

he had to do with the incident and he told her

he had dropped the match which ignited the

gasoline.

I asked him [Carter] about what had

happened because I had heard a lot of

things about it. I asked him and he said

that Mark [Anthony Parker] was fighting

with somebody and then I asked what did

him and Karl have to do with it, he said

they got out of the car, he said Karl had

&@ gas--a jug with--gas and I asked what

did he do, he said he dropped the match

and ran in front of Church’s Chicken. He

said he [Carter] was about to light a

joint and he dropped the match and ran in

front of Church’s Chicken. Then he said,

"The mother fucker should have died

because he slapped him,’ and everybody was

calling him the flamethrower, he hollered

out, ‘Don’t call me the flamethrower, call

me the destroyer"

-A26-

By the time of the second trial, T. C.

Carter was residing in Germany with relatives.

Defense counsel had a subpoena issued for

Carter, only to have it returned "Not found".

Carter’s mother appeared and testified that he

was in Germany with his stepmother. Obviously,

T. C. Carter was unavailable for testimony.

In the end the primary difference between

Parker’s first trial--which ended in a hung

jury--and his second trial--which resulted in a

manslaughter conviction--was the presence of

and testimony of T. C. Carter and Alicia Rainey

at the first trial, but the absence of Carter

and the exclusion of the testimony of Rainey at

the second.

On October 10, 1983--some ten days

following the declaration of a mistrial at

Parker’s first trial--and some seven months

prior to his second trial, Parker filed a

motion for a transcript of the first trial,

-A27-

alleging “that a full transcript of the first

trial would be an essential and valuable tool

at the second trial of this cause". It is not

Clear, however, that the trial judge ever ruled

upon the motion or, for that matter, that

Parker’s counsel affirmatively sought a ruling

prior to the second trial. The issue of the

transcript of the first trial arose during

cross-examination of State Witness Cheryl

Nehlig when Parker‘s counsel requested that

examination of the witness be continued until

the next morning and that the court reporter

provide him with a transcript prior to the

completion of his cross-examination. The

record reflects that the tape recording of the

testimony of Witness Nehlig at the first trial

was made available to counsel and was used in

an attempt to impeach her.

The testimony of T. C. Carter from the

first trial was certainly available for use in

-A28-

ieee nectar

the second trial in the same form as Nehlig’s.

The critical point at trial was Parker's

attempt to introduce into evidence the prior

testimony of T. C. Carter. This, of course,

was to be followed by the live testimony of

Alicia Rainey who would impeach Carter by

relating to the jury the statement quoted above

which she attributes to Carter.

Chambers v. Mississippi, 410 U.S. 284, 93

S.Ct. 1038, 38 L.Ed.2d 297 (1973) arose in a

similar factual setting. In Chambers a witness

named McDonald was said to have made a prior

statement confessing to the crime. The defense

had three witnesses who were prepared

substantially to impeach McDonald’s subsequent

recantation. Chambers held that, the due

process clause prohibited this state from

enforcing its voucher and hearsay rules so as

to preclude the defense, first, from calling

McDonald as a witness and, second, from

-A29-

impeaching his testimony with the three

additional witnesses. The differences between

Chambers and the case at bar are twofold and

minor: In Chambers the defense offered

McDonald as a live witness while here Carter is

offered via the former testimony exception to

the hearsay rule. Second, in Chambers the

defense had three witnesses with whom to

impeach McDonald while here the defense has

only one witness with whom to impeach Carter’s

recantation.

Parenthetically, it should be noted that

at Parker's first trial the Chambers procedure

appears to have been followed in its entirety.

There Carter appeared as a live witness called

by the defense and made his recantation. On

the authority of Chambers, Parker’s counsel was

then allowed to call Rainey who gave testimony

that Carter had said that he threw the match

that started the fire, referring to the

-A30-

statement by Carter quoted above.

The testimony of T. C. Carter from the

first trial was available. Whether that

testimony was available in transcribed form or

tape recorded form need not detain us. Our

question is whether that testimony is

admissible. As argued by Parker in his brief,

the testimony comes within the former testimony

exception to the hearsay rule. See Smith v.

State, 247 So.2d 705, 706 (Miss. 1971); Lee v.

State, 124 Miss. 398, 416, 86 So. 886, 858

(1921).

[4] The foremost requirement of the

former testimony exception to the hearsay rule

is that the witness or declarant be

unavailable. Williams Yellow Pine Co. v.

Williams, 187 Miss. 425, 432, 195 So. 1,2

(1940); Owens v. State, 63 Miss. 450, 452-55

(1896). Dicta in some of our cases have

suggested that in a oriminal trial the

-A31-

out-of-court-declarant must actually have died

in order to be declared “unavailable”, saith

v. State, 247 So.2d 705, 706 (Miss. 1971),

although surely this overstates the point.

Here the declarant, T. C. Carter, was in West

Germany at the time of the trial. It would

defy common sense to hold that such a witness

was “available” for present purposes.

[5,6] The strictures of the former

testimony exception, as it existed at the time

of this trial*, are best summarized in the

Opinion of Judge Henry Lee Rogers in Jolly v.

State, 269 Sc.2d 650, 654 (Miss. 1972). Those

requirements are (1) the former testimony must

have been given under oath; (2) the party

against whom the testimony is offered must have

had a reasonable opportunity for

cross-examination; (3) there must have been an

4 Effective January 1, 1986, the former

testimony exception to the hearsay rule may be

found in Rule 804(b)(1), Miss.R.Ev.

identity of the parties in the former trial and

in the trial in which the testimony is offered;

(4) there must have been an identity of the

issues; and (5) the witness must be unavailable

at the time of the second proceeding. Since

the trial at issue here is a retrial of the

charges under the same indictment, it seems

Clear that the Jolly requisities for the former

testimony exception are met. The testimony of

T. C. Carter from the first trial, whether in

transcribed or tape recorded forn, was

admissible at the second trial . This is so

procedurally by virtue of the former testimony

exception to the hearsay rule. Chambers

declares it so substantively.

(7) Turning next to the question of

whether Parker could employ Alicia Rainey to

impeach T. C. Carter‘’s recantation, we find the

point again covered by Chambers. It will be

recalled that in Chambers, MoDonald had

-A3S-

confessed to the crime and then recanted.5 The

defense had three witnesses--Hardin, turner and

Carter--each of whom was prepared to impeach

McDonald’s recantation. In the case at bar

T. C. Carter finds himself in the shoes of

Hardin, Turner and Carter in the Chambers

case. Chambers holds that the defense may not

be precluded from calling such witnesses for

the purposes of impeaching a witness called by

the defense. This is particularly so where the

tenor of the entire attempt by the defense was

to place before the jury the confession of

5 The old voucher rule was repealed in

civil cases, effective January 1, 1983. Harris

v. Buxton T.V. Ino., 460 So.2d 828 (Miss.

1984). It stands repealed in criminal cases,

effective January 1, 1986. Rules 607 and

611(c), Miss. R.Ev. At the time of the trial

‘here under scrutiny, the rule was in effect,

subject to Chambers limitations.

-AS4-

someone else to the crime charged under the

indictment. Here the whole tenor of the

defense efforts was to place before the jury

T. C. Carter‘s admission that he threw the

match which started the fire that killed

Darrell Jay Jones.

(8] The trial judge committed error when

he refused to allow the defense to offer into

evidence the prior testimony of T. C. Carter

and then to allow the defense to call Alicia

Rainey to impeach Carter’s recantation. The

mature and history of the case makes it

apparent that the error is of reversible

proportions. The question of who was the

aggressor, Darrell Jay Jones or Mark Anthony

Parker, was hotly disputed at trial. The fact

that Jones was white and Parker was black and

that all agreed that each was hurling racial

epithets at the other further clouded the

picture. In this setting on September 350,

1985, with Parker on trial for murder, and with

-AS5-

the jury having before it the evidence that T.

C. Carter had admitted and even bragged about

having thrown the fatal match, a hung jury and

mistrial resulted. Almost eight months later,

upon retrial, and with the critical testimony

from T. C. Carter and Alicia Rainey, the jury

was still in some doubt, as is evidenced by the

“compromise” manslaughter verdict. Compared

with the first trial and considered in the

context of the proof, we consider that the

exclusion of the Carter-Rainey testimony from

the second trial undermines confidence in the

result.

We emphasize that this case is

distinguishable from three of our post-Chambers

decisions. Fermo v. State, 370 So.2d 930, 934

(Miss. 1979); Lee v. State, 338 So.2d 399, 402

(Miss. 1976) and Thompson v. State, 309 So.2d

533, 534-35 (Miss. 1978). In each-of those

three cases the so-called confession of the

third party--the party in the petition

-A36-

equivalent to Carter here--came from a person

who was not present to testify at trial.

Accordingly, the defense in each instance

sought to introduce the hearsay version of the

so-called confession under the declaration

against penal interest exception to the hearsay

rule. In each of those cases the person who

gave the so-called confession was not a party

to the proceedings nor was that person's

testimony available in any form. Typical of

the Thompson-Lee-Fermo holdings is the

statement in Fermo that:

We hold, therefore, that...where the

declarant is not available his out of

court declarations against penal

interest are not sufficiently

trustworthy to justify the court in

making an exception to the hearsay

rule.

370 So.2d at 934.

As indicated above, Parker's first trial

was legally synonymous with Champers. Carter

was available at Parker‘'s first trial, as

MoDonald had been available at Chamters’

trial. Following the Chambers’ procedure,

-A37-

Parker was allowed to impeach Carter's

recantation through Rainey’s testimony.

The precise question then posed is whether

Parker's second trial is taken out of Chambers

because Carter's testimony is available then

under the former testimony exception to the

hearsay rule rather than via Carter‘s

appearance. Rainey’s testimony, of course, in

both instances would be substantially the

Same--and we are somewhat hemmed in by the fact

that that testimony was admitted at the first

trial.

Thompson, Lee and Fermo all proceed on the

premise that the confession was not admissible

via the declaration against penal interest

exception to the hearsay rule.§

6 The statement against interest hearsay

exception made a part of our law, effective

January 1, 1986, via Rule 804(b)(3), Miss.

R.Ev., is broader than the exception we have

previously recognized. We have no occasion

here to consider whether Rule 804(b)(3) may in

any way undermine Thompson, Lee or Fermo, and

we express no opinion in that regard.

-AS8-

Here, there is an independent basis for the

confession’s admissibility. With Carter's

testimony wholly admissible under the former

testimony exception, Rainey’s testimony is

admitted as impeachment of Carter's

testimony. While conceding that the point is

close and that the underlying rationale for

distinguishing this case from Thompson, Lee and

Fermo is not wholly satisfactory, we find a

dominant pronouncement of law in this area,

that emanating from Chambers, and find this

case sufficiently within the scope and policy

of Chambers that we must reverse.

The judgment that Mark Anthony Parker

stand convicted of the crime of manslaughter is

reversed and this case is remanded to the

Circuit Court for a new trial in all respects

consistent with this opinion.

REVERSED AND REMANDED

ROY NOBLE LEE, P.dJ. and PRATHER, SULLIVAN

and DAN M. LEE and GRIFFIN, JJ., dissent by

written opinion.

-A39-

DAN M. LEE, Justice, dissenting:

I respectfully dissent from the majority’‘s

opinion in this case, which would allow the

admission of T. C. Carter‘’‘s prior statement

that he was the person who threw the match on

Darrell Jay Jones, for several reasons. First,

I do not believe that the rules of evidence of

Mississippi, either as they existed at the time

of trial, or as they have been since amended,

allow the admission of this type of hearsay

testimony. Second, the rationale of Chambers

v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35

L.Ed.2d 297 (1973), applies only to the limited

circumstances of that case, and would be

improperly applied here. Finally, this

testimony, in my opinion, represents precisely

the type of uncorroborated, inherently

unreliable hearsay that the rules are designed

to prevent from being presented to the jury.

Carter's testimony amounted to &

-A40-

Aint

declaration against pecuniary interest.

Forrest County Coop. v. McCaffrey, 2535 Miss.

486, 176 So.2d 287 (1965); Brown v. State, 99

Miss. 719, 55 So. 961 (1911). This was the

state of the law in Mississippi when we decided

Chambers v. State, 252 So0.2d 217 (Miss. 1971).

The United States Supreme Court overruled that

decision in Chambe rs_v. Mississippi, supra,

holding that the| declarant’'s [McDonald’‘s]

testimony should be admitted because:

Donald was pres nt in the courtroom

and had been | under oath...The

availability \ 98 McDonald

significantly distinguishes this case

from the prior Mississippi precedent,

Brown v. State, supra, and from the

Donnelly-type situation, since in

both cases the declarant was

unavailable at the time of the

trial. (410 U.S. at 301, 93 S.Ct. at

1049, 35 L.Ed.2d at 312).

Since the decision in Chambers, we have

held that the declaration against penal

interest exception to the hearsay rules applies

only when the declarant is present at trial.

-A4l-

Fermo v. State, 370 So.2d 399 (Miss. 1979); Lee

v. State, 338 So.2d 399 (Miss. 1976); Thompson

v. State, 309 So.2d 533 (Miss. 1975). The

reasons for this requirement are obvious. The

exception to the hearsay rule is made because

the seriousness of exposing oneself to criminal

liability is believed to outweigh the potential

for unreliability traditionally associated with

hearsay. However, if the declarant has

“confessed” and disappeared, it can hardly be

said that the statement was made with much

appreciation of the possible consequences.

The hazard he assumed was not,

therefore, one of very great gravity,

especially as his running away on

being released goes strongly to show

that...he did not intend to inour any

decided risk, and was ready to recant

his confession as soon as it had

served its purpose or exposed him to

any great peril (Brown, 99 Miss. at

729, 55 So. at 962).

Furthermore, when the declarant is not

present at trial, he cannot be questioned about

the statement or its movitation. Additionally,

-A42-

5 Ot AIP SITY A Le SS

the absence of the declarant raises’ the

possibility of collusion between the defendant

who is offering the out-of-court statement as

exculpation, and the out-of-court Cand

out-of-harm's-way) declarant. The Chambers

court recognized this danger, as posed in the

following hypothetical:

A could be charged with the crime; B

could tell C and D that he committed

the crime; B could go into hiding and

at A’s trial C and D would testify as

to B’s admission of guilt; A could be

acquitted and B would return to

B could then provide several

witnesses to testify as to his

whereabouts at the time of the

crime. The testimony of those-

witnesses along with A’ statement

that he really committed the crime

could result in B’s acquittal. A

would be barred from further

prosecution because of the protection

against double jeopardy. No one

could be convicted of perjury as A

did not testify at his first trial, B

did not lie under oath, and C and D

were truthful in their —

testimony...Obviously, B’s absence at

trial is critical to the success of

the justice-subverting ploy. (410

U.S. at 301, 93 S.Ct. at 1049, 35

L.Ed.2d at 312, N. 21).

-A43-

Rule 804(b)(3) of the new Mississippi

Rules of Evidence, effective January 1, 1986,

does not apply to this case. However, it is

worth noting, primarily because of its

requirement that “A statement tending to expose

the declarant to criminal liability and offered

to exculpate the accused is not admissible

unless corroborating circumstances clearly

indicate the trustworthiness of the statement."

Thus, this testimony would fail under the

new rules or the old as a declaration against

penal interest. Under the old rules, it would

fail because T. C. Carter was not present at

trial. Under the new rules, it would fail

because the testimony was not corroborated.

Indeed, the testimony of all of the

eyewitnesses to the crime refutes this

sorcalled “confession”, and states that Parker

was actually the man who threw the match into

Jones’ car.

-A44-

The majority's opinion would have this

testimony admitted into evidence on the basis

of its falling within the former testimony

exception to the hearsay rules. Conversely to

the declaration against interest exception--

which requires the presence of the declarant--

the former testimony exception requires his

absence, in fact, his unavailability. As the

testimony is clearly hearsay, its proponent has

the burden of showing that it is deserving of

admission, and the requirement for admission is

that the declarant be unavailable to testify.

Our prior cases have held that

unavailability, in this contest, means dead or

incompetent. Justice Robertson characterizes

this language as “dicta." I do not agree.

Consider the following cases:

It is well established that the

testimony of a deceased witness,

given under oath in a judicial

proceeding between the same parties

on the same issue, is competent, both

in civil and criminal cases, for

-A45-

either party when the party against

whom the testimony is offered had

Opportunity to cross-examine the

witness on the former proceeding.

(citations omitted] .

But whatever may be the rule in civil

actions as to the admission of

evidence to prove what was sworn by a

witness on a former trial between

the parties when such witness is alive but

has removed [himself] from the state, or

is beyond the jurisdiction of the court,

such evidence is exoluded on criminal

trials. (ovens vy. State, 63 Miss. 450,

452-53 (1886).

In the trial of any case where the

testimony has been taken and transcribed

by the official reporter of the court in

which the case was tried, such transcribed

testimony is admissible only when such

witness giving the testimony has become

mentally or physically incompetent and

incapable of testifying on a retrial of a

case, or is dead.

The proof in this record disclosed

that High “Sonny“ MoInnis was a

resident of Atlanta, Georgia, and was

neither mentally nor physically

incompetent to testify and was living

at the time of the second trial.

Mere absence from the jurisdiction of

the court, as was evident in this

cause, does not meet the test

provided by the statute.

(Smith v. State, 247 So.2d 704 (Miss.

1971).

-A46-

Jolly _v. State, 269 So.2d 650 (Miss.

1972), which is cited in the majority opinion,

does suggest that temporary absence from the

jurisdiction qualifies as “unavailability."*

However, the opinion was merely stating the

criteria from MoCormick’s treatise on evidence,

and not necessarily stating the law in

Mississippi. Furthermore, the witness in Jolly

had died prior to trial, so this criteria was

not even an issue in the case. Clearly, this

is “dicta.”

I would not hold that prior testimony is

inadmissible unless the witness is dead or

incompetent at the time of trial. However, I

would hold that “unavailability” means more

than mere absence from the jurisdiction. Rule

804(a)(5), Miss. R.Evid. includes as 4

definition of “unavailability” the situation

where the declarant “Is absent from the hearing

and the proponent of his statement has been

-A47- .

aaa el |

unable to procure his attendance...by process

or other reasonable means.“ This requirement

is in line with our prior case law, holding

that the party wishing to introduce the

statement must subpoena the witness and prove

that the witness is unavailable. Peeples v.

State, 218 So.2d 436 (Miss. 1969).

To further illustrate the point, consider

the stringent requirements imposed upon the

state when it seeks to introduce prior

testimony of a witness who is unavailable. In )

that situation, the Confrontation Clause of the

sixth amendment mandates that “the prosecution

must either produce, or demonstrate the

unavailability of, the declarant whose

statement it wishes to use against the

defendant...(and) countenances only hearsay

marked with such trustworthiness that ‘there is

no material departure from the reason of the

general rule.’‘" Ohio v. Roberts, 448 U. S. 56,

-A48-

65, 100 §.Ct. 2531, 2538-39, 65 L.Ed.2d 597,

607 (1980). It is my opinion that this

requirement should apply to both parties

equally.

In this case, there is little evidence

which can be gleaned from the record as to why

Carter was not present at trial. The attorney

for the Defendant stated to the court at one

point that a subpoena had been issued for

Carter and returned "not found.” However, that

subpoena was never made a part of the record,

and there is no indication that it was even

shown to the court below. Furthermore, when

Carter’s mother testified, she stated that no

one had attempted to serve her son with process

since the first trial. She also testified that

her son planned to stay in Germany with his

father, who is, presumably, in the military.

According to Mrs. Carter, T. C. would not be

returning to this country before his father’s

-A49-

tour was up, “([i]f it’s not necessary.”

In light of this evidence, I could not say

that T. C. Carter was “unavailable.” Thus, I

would hold his former testimony inadmissible as

hearsay not within the former testimony

exception.

The majority’s opinion would extend the

rationale of Chambers to hold that the

testimony should be admitted in spite of its

failure to come under an exception to the

hearsay rule. I would not go so far. Chambers

involved a unique set of circumstances, where

not one evidentiary rule, but the cumulative

effect of two rules, deprived the defendant of

due process at his trial. The rules involved

were the voucher rule and the declaration

against penal interest. In reversing the

conviction, the United States Supreme Court did

not invalidate either of the evidentiary rules,

but, “(rjJather, we hold quite simply that under

t £ thi the

ruli t rived rs_ of

a fair trial.” (Empahsis added) 410 U. S. at

303, 93 §.Ct. at 1049, 35 L.Ed.2d at 313. In

limiting the holding, that Court did not issue

any sweeping mandate to this Court to change

any existing law on the admissibility of

hearsay, but only examined the peculiar facts

of a particular case and found -that the

defendant did not there receive a fair trial.

Consider the facts of Chambers, , The

out-of-court admission had been made

spontaneously to three different persons

shortly after the event; the admissions

corresponded to eyewitness’ testimony of the

shooting; and the declarant was in the

courtroom under oath, where he could be

examined as to the statements. In our case,

the admission by Carter was made only to a

-A5S1-

young girl, at a dance, under circumstances

more suggestive of braggadccio than candor.

The girl to whom Carter made the statement,

Alicia Rainey, testified that it was made on

March 7, 1983, when the crime did not even take

place until April 26 of that year. The

so-called confession is completely at odds with

eyewitness testimony, all of which points to

Parker as the man who started the fire.

Finally, Carter, the declarant, was safely in

Germany when the testimony was offered, with

little or no attempt being made to reach hin.

This case comes nowhere near Chambers, which,

in any event, dealt with an entirely different

exception to the hearsay rule. I would not

extend the rationale of Chambers to cover this

case.

The exclusion of this testimony did not

deprive the defendant in this case of due

process. To suggest that the exclusion was the

only reason the first jury could not agree on a

verdict while the second jury returned a4

verdict of guilty is to ignore the fact that

twelve completely different persons sat on the

second jury. Finally, and I repeat, the

circumstances of this case do not suggest that

the out-of-court statement by Carter was

trustworthy; they suggest just the opposite.

The statement appears to be the brash assertion

of a young boy attempting to impress a young

girl. As recognized in Brown, “Many motives

apart from the love of truth and justice,

induce men to assume the gravest risks." (99

Miss. at 728, 55 So. at 962.) The phrase,

“Don't call me the flamethrower, call me the

destroyer." is hardly suggestive of the gravity

of thought required *o assume that an

out-of-court confession is inherently

reliable. Furthermore, at the only examina-

tion of Carter regarding the statement, at

-A5S-

at the first trial, he recanted the admission.

In sum, I believe that this testimony is

the very type of inherently untrustworthy

hearsay that the rules were designed to

exclude, and I strongly oppose carving another

exception to the hearsay rules to allow its

admission.

WALKER, C.d., HAWKINS, P.JdJ. and GRIFFIN,

d., join this dissent.

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