IN THE SUPREME COURT OF MISSISSIPPI
NO. 2010-KA-00678-SCT
JULES CORBIN
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 03/05/2010 TRIAL JUDGE: HON. BETTY W. SANDERS COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF INDIGENT APPEALS BY: JUSTIN TAYLOR COOK LESLIE S. LEE ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS SCOTT STUART DISTRICT ATTORNEY: WILLIE DEWAYNE RICHARDSON NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 09/22/2011 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE WALLER, C.J., LAMAR AND PIERCE, JJ.
PIERCE, JUSTICE, FOR THE COURT:
¶1. Jules Corbin, Tammy Louis, and James Henry, Jr. were involved in an automobile
wreck that left Louis dead and Henry severely injured.1 Corbin was indicted for capital
murder, aggravated assault, and felony fleeing the scene of an accident. However, he was
convicted by a jury in Washington County Circuit Court of the lesser-included offense of
1 Henry later died from the injuries he sustained in the wreck. His death occurred before trial. murder, as well as aggravated assault and felony fleeing the scene. Corbin was sentenced
to life imprisonment for murder, ten years for aggravated assault, and three years for felony
fleeing. Aggrieved, Corbin appeals, and claims, among other things, that his Sixth-
Amendment right to confrontation was violated. We agree and find that the error was not
harmless as to the charges of murder and aggravated assault, but that it was harmless as to
the charge of felony fleeing the scene of an accident. Thus, we reverse and remand in part,
and affirm in part.
FACTS AND PROCEEDINGS
¶2. The following facts were gleaned from the testimony and evidence presented at trial.
Louis and Corbin had lived together for two years prior to the automobile wreck that
occurred on August 15, 2008. On the day in question, Corbin asked Louis if he could use
her son’s car, a gray Mercury Grand Marquis, so he could drive to Leland, Mississippi, and
get money from his mother.2 Later that afternoon, Louis began to get ready to go to a party
with her friend, Henry. Louis and Henry left the house around 8 p.m. in a green, four-door
Expedition.
¶3. Louis’s daughter, Shakila, had been text-messaging her mother throughout the
evening, when the texts from Louis suddenly stopped around 11 p.m. The police arrived
shortly thereafter and told Shakila that her mother had been killed in a car wreck. Upon
arriving at the wreck scene, Shakila saw her mother’s Expedition “jammed into a pole.”
Louis had passed away at the scene of the wreck, but Henry was taken to a local hospital.
2 At trial, Louis’s son and daughter testified that Corbin had borrowed the Mercury Grand Marquis, and that it belonged to Louis’s son, Mario Rhodes.
2 Eventually, he was transferred to the Regional Medical Center (“The Med”) in Memphis,
Tennessee.
¶4. Damarcus Lott and Henry House were nearby when the wreck occurred. They both
testified at trial to hearing a loud crash, and then seeing a gray Marquis smashed into the rear
end of a green Expedition. Both Lott and House stated that they saw a man in a Marquis get
out of his car, walk to the passenger side of the Expedition, take a dark-colored object with
straps “like a purse” from the vehicle,3 and drive off. Lott testified that he had seen the
man’s face, and that the man was wearing a white shirt, jeans, and had “a cap on his head.”
House did not see the man’s face, but said that the man “had a fitted cap on, white T-shirt,
[and] blue jeans.”
¶5. Meanwhile, Samantha Davenport and her husband, John Haggard, were en route to
pick up Haggard’s paycheck at a local casino, when Corbin flagged them down. Both
Davenport and her husband testified at trial. Corbin told them that his car had been stolen,
and that he needed a ride. The couple refused to give Corbin a ride. Within a few minutes,
Corbin said he saw his car and ran off. Haggard stated that Corbin had looked nervous, as
if “he was trying to hide something.” Additionally, both witnesses observed that Corbin had
a dark-colored object with straps tucked under his shirt. Haggard stated that Corbin was
wearing a white shirt and a cap.
3 Later, a black purse with straps was discovered near a trash bin. It was determined that the purse belonged to Louis. Corbin’s taking of the purse and Louis’s subsequent death were grounds for the capital-murder charge. However, Corbin was convicted of murder.
3 ¶6. Shortly thereafter, Corbin went to the Greenville police station and reported his car
stolen. Since officers had received information that Corbin had been driving one of the cars
involved in the wreck, they arrested Corbin and charged him, initially, with leaving the scene
of an accident and burglary. A couple of days after his arrest, Corbin waived his Miranda
rights and spoke with Investigator Gary Castleberry about the wreck.4 He told Castleberry
that he “was involved in the accident,” but that “they [Louis and Henry] caused it.” Corbin
further said that, once he had seen the driver of the vehicle, he had “turned around and began
chasing them.” Corbin never admitted to hitting the Expedition with the car that he had been
driving.
¶7. Approximately one month after the wreck, Castleberry received a phone call and
learned that Henry, the driver of the green Expedition, was no longer on life support, and that
he was able to speak about the wreck. Castleberry drove to Memphis, Tennessee, and
recorded the following statement from Henry.
Q. Do you recall what happened the night of the accident?
A. Well, like I say, he pulled up on the side of us.
Q. You say he pulled up the [sic] side of you. Who?
A. Poo.
Q. Poo. Do you know Poo’s given name?
A. I just call him Poo.5
4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 5 At the time this statement was played for the jury, it had been established that “Poo” was Jules Corbin.
4 ...
Q. Now, what was said and what do you remember?
A. I asked her who it was. She said it was Poo. And she said go ahead on. So I went ahead on. He got in behind us on Gloster. He hit the car one more time.
Q. You say he was hitting the car?
A. Uh-huh.
Q. He was hitting the Expedition you were in. What was he driving?
A. He was in Mario’s car, Mercury.
Q. Do you remember what color it was?
A. It was gray.
...
Henry died from the injuries he had sustained in the wreck approximately six months after
the recorded interview. At trial, and over a hearsay objection by defense counsel, the tape
was played for the jury and admitted into evidence.
¶8. At trial, Corbin testified in his own defense. He stated that he had borrowed the
Marquis and had gone to Leland to “take care of some business.” Corbin claimed that, when
he returned to Greenville, he went to a friend’s house to smoke marijuana. Corbin said that
when he went to leave the house, he couldn’t find the car. Corbin stated that he flagged
down Davenport and Haggard and asked them for a ride, which they refused. Corbin
testified that he then walked to the police station and reported the car stolen. Corbin stated
that he never “had a conversation” with Castleberry regarding his involvement in the wreck.
5 ¶9. Corbin was convicted of murder, aggravated assault, and felony fleeing the scene of
an accident. He was sentenced to life imprisonment for murder, ten years for aggravated
assault, and three years for felony fleeing the scene of an accident. On appeal, Corbin raises
five issues, the first issue being that his Sixth-Amendment right to confrontation was violated
when the trial court allowed the State to play the recorded statement by Henry. Because this
issue is dispositive, we decline to address the other issues raised on appeal.
DISCUSSION
¶10. On appeal, Corbin claims that his Sixth Amendment right to confrontation was
violated by the admission of the recording of Henry’s statement, in violation of Crawford
v. Washington.6 Corbin’s trial counsel failed to make a Crawford objection regarding the
admission of the statement, and Corbin now asks this Court to address the issue under the
doctrine of plain error.7
¶11. “Under the doctrine of plain error, we can recognize obvious error which was not
properly raised by the defendant on appeal, and which affects a defendant’s ‘fundamental,
substantive right.’” 8 A violation of the Confrontation Clause is a violation of a “fundamental,
substantive right,” 9 which seriously affects the “fairness, integrity or public reputation of
6 Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). 7 Id. 8 Smith v. State, 986 So. 2d 290, 294 (Miss. 2008) (citing Debrow v. State, 972 So. 2d 550 (Miss. 2007)). 9 Id.
6 judicial proceedings.” 10 Therefore, we will address whether the admission of the recording
of Henry’s statement, which implicated Corbin, violated Corbin’s right to confrontation, and
if so, whether such error requires reversal.11
I. Whether Henry’s prerecorded statement to police violated Corbin’s constitutional right of confrontation under the Sixth Amendment.
¶12. The United States Supreme Court has said:
[There] are few subjects, perhaps, upon which this court and other courts have been more nearly unanimous than in the expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.12
¶13. The Confrontation Clause of the Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” 13 Article 3, Section 26 of the Mississippi Constitution provides an almost identical
safeguard. Thus, the admission of a testimonial statement of a witness who does not appear
at trial is barred, unless that witness is unavailable, and the defendant has had a prior
opportunity for cross-examination.14 As noted in Crawford v. Washington, this bar only
10 United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776, 123 L. Ed. 2d 508, 518 (1993). 11 See Smith, 986 So. 2d at 294. 12 Lee v. Ill., 476 U.S. 530, 540, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986) (quoting Pointer v. Texas, 380 U.S. 400, 405, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965)). 13 Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224 (2006) (citing Crawford, 541 U.S. at 59). 14 Id.
7 applies to statements that are “testimonial.” 15 And while the Supreme Court has declined to
provide a definition of “testimonial,” it has said that “‘[t]estimony’ . . . is typically ‘a solemn
declaration or affirmation made for the purpose of establishing or proving some fact.’” 16 This
necessarily includes, among others, “police interrogations” and “statements that were made
under circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” 17
¶14. Henry’s statement to Castleberry implicating Corbin as the driver who hit the
Expedition and the person responsible for the wreck certainly qualifies as testimonial under
the core class of statements enumerated in Crawford.18 The statement was such that an
“objective witness” would reasonably believe that the statement would be available for use
at a later trial. Because Henry’s statement was made for the purpose of assisting police with
its investigation, the purpose was prosecutorial. Thus, the statement was testimonial, and
should have been excluded.
¶15. Moreover, the exception prescribed in Crawford is barred, because Corbin did not
have a prior opportunity to cross-examine Henry before his death. Confrontation and the
ability to cross-examine witnesses are fundamental elements of a fair trial. Here, the jury
15 Crawford, 541 U.S. at 68. 16 Neal v. State, 15 So. 3d 388, 403 (citing Crawford, 541 U.S. at 51). 17 Id. at 403-404 (citing Crawford, 541 U.S. at 52). 18 Crawford, 541 U.S. at 51-52.
8 was allowed to hear incriminating evidence as to Corbin’s guilt, without it being tested in the
“crucible of cross-examination.” 19
¶16. Now we must determine whether this violation of Corbin’s constitutional right was
harmless error.20 In Delaware v. Van Arsdall, the Supreme Court explained the parameters
that should be considered by an appellate court when reviewing a Confrontation-Clause
violation as harmless error.
The correct inquiry is whether, assuming the damaging potential of the cross- examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.21
¶17. In order for the violation of Corbin’s constitutional right to confrontation to be
considered harmless, the admission must be harmless beyond a reasonable doubt.22
Mississippi Code Section 97-3-7 provides: “[a] person is guilty of aggravated assault if he
. . . (b) attempts to cause or purposely or knowingly causes bodily injury to another with a
19 Crawford, 541 U.S. at 61-62. 20 Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986) (a violation of the Confrontation Clause is subject to “harmless error” analysis); see also Earl v. State, 672 So. 2d 1240, 1243-44 (Miss. 1996). 21 Delaware v. Van Arsdall, 475 U.S. at 684. 22 Id.
9 deadly weapon or other means likely to produce death or serious bodily harm.” 23 And
Section 97-3-19 states that: “[t]he killing of a human being without the authority of law by
any means or in any manner shall be murder in the following cases: [w]hen done in the
commission of an act eminently dangerous to others and evincing a depraved heart,
regardless of human life, although without any premeditated design to effect the death of any
particular individual.” 24 Henry’s recorded statement was the only piece of evidence at trial
that accused Corbin of purposely or knowingly hitting the Expedition and causing the wreck.
Such evidence was vitally important to prove, beyond a reasonable doubt, that Corbin
purposely or knowingly had used the car as “a deadly weapon,” 25 and that he had killed a
human being “without the authority of law by any means or in any manner.” 26 No other
witness provided similar testimony. And Corbin denied hitting the car and causing the wreck
in his statement to Castleberry. Thus, we cannot say that the admission of the statement was
harmless beyond a reasonable doubt.
¶18. With regard to the charge of felony fleeing the scene of an accident, the error is
harmless. Mississippi Code Section 63-3-401 requires that:
The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident . . . but shall then forewith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of Section 63-3- 405.
23 Miss. Code Ann. § 97-3-7 (Rev. 2006). 24 Miss. Code Ann. § 97-3-19 (Rev. 2006). 25 Miss. Code Ann. § 97-3-7 (Rev. 2006). 26 Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2006).
10 Section 63-3-405 states that the driver of any vehicle involved in an accident resulting in
injury or death to any person, or damage to any vehicle, shall give his name, address, and the
registration number of the vehicle he is driving, among other things.27 Section 63-3-405 also
states that the driver of any vehicle involved in an accident resulting in injury shall render
reasonable assistance to any person injured in such accident.28
¶19. Demarcus Lott testified that he had seen Corbin get out of the Marquis, walk to the
passenger side of the Expedition, “get a purse” from the vehicle, and drive off. Lott testified
that he had seen the man’s face, and he gave a description to police. Lott’s description of
Corbin was corroborated by the testimony of Davenport, Haggard, and House. Lott made
an in-court identification of Corbin as the person he had witnessed leaving the scene of the
wreck. House also testified that he had seen a man get out of the Marquis, walk to the
passenger side of the Expedition, take a dark-colored object with straps from the vehicle, and
drive off. Thus, in light of this evidence, Henry’s recorded statement was circumstantial
evidence that Corbin fled the scene and was cumulative to the testimony of Lott and House.
¶20. Corbin argues that his trial counsel was ineffective for failing to object when Lott
made the in-court identification. Corbin alleges that the in-court identification was based
upon an “impermissibly suggestive pre-trial identification procedure.” This argument has
no merit, as the record is clear that Lott was never shown a picture of Corbin prior to trial.
The State showed Lott a picture of Corbin at trial, but only after Lott had identified Corbin
as the man he had seen on the night in question. Lott testified that he had gotten a “good
27 Miss. Code Ann. § 63-3-405 (Rev. 2004). 28 Miss. Code Ann. § 63-3-405 (Rev. 2004).
11 look” at Corbin, and that he was familiar with Corbin from seeing him around town. And
his description of Corbin was corroborated by the testimony of Davenport, Haggard, and
House. Accordingly, Corbin’s conviction and sentence regarding this charge stand.
¶21. Lastly, we note that, in its brief, the State argues that Henry’s statement was otherwise
reliable, and its admission at trial should be deemed harmless error. When dealing with
testimonial evidence, a finding of reliability does not create an exception to the Confrontation
Clause. “[W]here testimonial statements are at issue, the only indicium of reliability
sufficient to satisfy constitutional demands is the one the Constitution actually prescribes:
confrontation.” 29 “Admitting statements deemed reliable by a judge is fundamentally at odds
with the right of confrontation.”30 Thus, any notion that Henry’s statement was admissible
because it was reliable overlooks the undeniable fact that the Confrontation Clause is a
procedural, rather than a substantive, guarantee.31
CONCLUSION
¶22. Because the admission of Henry’s unconfronted statement resulted in the violation of
Corbin’s constitutional right to confrontation, impeding his right to a fair trial, we reverse
and remand the convictions for murder and aggravated assault for a new trial consistent with
29 Crawford, 541 U.S. at 68-69. 30 Id. at 61. 31 Id.
12 this opinion.32 We affirm Corbin’s conviction for felony fleeing the scene of an accident, as
overwhelming evidence of Corbin’s guilt was properly submitted to the jury.
¶23. COUNT I: CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, REVERSED AND REMANDED. COUNT II: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, REVERSED AND REMANDED. COUNT III: CONVICTION OF FELONY LEAVING THE SCENE OF AN ACCIDENT AND SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.
WALLER, C.J., CARLSON, P.J., RANDOLPH AND LAMAR, JJ., CONCUR. KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., CHANDLER AND KING, JJ.
KITCHENS, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶24. I agree with the majority’s conclusion that the trial court violated Jules Corbin’s Sixth
Amendment right to confrontation when the previously recorded police interview of James
Henry, Jr., was admitted into evidence. As such, I agree that, with respect to Count I for
murder and Count II for aggravated assault, the convictions and sentences should be reversed
and remanded for a new trial. However, I respectfully disagree with the majority’s conclusion
that this error was harmless regarding Count III, felonious fleeing the scene of an accident;
therefore, I would reverse and remand for a new trial on all charges.
¶25. Harmless errors are “constitutional errors which in the setting of a particular case are
so unimportant and insignificant” they do not require the automatic reversal of a conviction.
32 HWCC-Tunica, Inc. v. Jenkins, 907 So. 2d 941, 944 (Miss. 2005) (“[I]n order to reverse under the plain error doctrine, the reviewing court must find both error and harm.”).
13 Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705 (1967). Where
a violation of the Confrontation Clause has occurred, the “testimony erroneously admitted”
must be “merely cumulative of other overwhelming and largely uncontroverted evidence
properly before the jury” in order to be considered harmless error. Brown v. U.S., 411 U.S.
223, 231, 93 S. Ct. 1565, 1570, 36 L. Ed. 2d 208 (1973). Moreover, “before a federal
constitutional error can be held harmless,” this Court must find that the error was harmless
beyond a reasonable doubt. Chapman, 386 U.S. at 24. The State is burdened with proving
that the error was harmless beyond a reasonable doubt. Smith v. State, 986 So. 2d 290, 300
(Miss. 2008) (citing Arizona v. Fulminante, 499 U.S. 279, 296, 111 S. Ct. 1246, 1257, 113
L. Ed. 2d 302 (1991)).
¶26. With regard to the charge of felonious fleeing the scene of an accident, the majority
opinion asserts that the trial court’s error in admitting James Henry’s taped interview was
harmless, given that the State’s witness, Dermarcus Lott, testified that he had seen Corbin
leaving the scene of the accident, and given that Lott’s description of Corbin was
corroborated by three other witnesses. In light of the testimony of these witnesses, the
majority concludes Henry’s recorded statement was “cumulative.” Maj. Op. at ¶ 19.
¶27. As for the taped interview of James Henry, the record indicates that, at trial, the tape
became inaudible, and that a complete transcription of what was played before the jury could
not be achieved. In the portion of the tape that was transcribed, Henry indicated that he had
been driving Tammy Louis’s vehicle when it was struck multiple times by a car driven by a
man whom he identified only as Poo. Henry did not recall Corbin’s having driven his vehicle
alongside the Expedition, which Henry and Louis occupied, following the wreck. Henry stated
14 that he did not recall being transported to the hospital, and that he did not recall anything after
the crash. However, the record then indicates that the tape containing the interview, which
continued to play for the jury, became inaudible in “many portions.” It is unclear from this
notation in the record whether it was inaudible to the jury, or just to the court reporter.
Therefore, there is no way to know whether the latter portion of the tape included a statement
from Henry that Corbin had fled the scene of the accident. Because it is impossible to
determine what the jury actually heard, there is no way to ascertain whether inadmissible
evidence was adduced before the jury concerning Count III.
¶28. The testimony of the witnesses at or near the scene of the accident does not support a
finding of harmless error. James House, who witnessed a man driving away from the accident
in a gray car, was unable at trial to identify Corbin as the driver. He testified that he could
merely describe the man he had seen that night. Samantha Davenport testified that, on the
night of the accident, Corbin had flagged her down and asked her for a ride because his car
had been stolen. Davenport’s passenger, Johnny Haggard, also testified that Corbin had
flagged them down, informed them his car had been stolen, asked for a ride, but then said he
did not need a ride after all. Neither Davenport nor Haggard was present at the scene of the
accident, and neither witnessed Corbin’s fleeing the scene of an accident. Thus, the only
witness among those enumerated by the majority who actually identified Corbin as the man
fleeing the scene was Demarcus Lott.
¶29. For the above reasons, I cannot conclude that the inadmissible statements made by
Henry were “merely cumulative of other overwhelming and largely uncontroverted evidence
properly before the jury.” Brown, 411 U.S. at 231. I believe that the State has failed to meet
15 its burden of showing beyond a reasonable doubt that the error was harmless with regard to
Count III. Smith, 986 So. 2d at 300. Therefore, I am unable to join the majority in affirming
the conviction of the charge laid in Count III of the indictment. I would reverse all three
convictions and remand the case for a new trial.
DICKINSON, P.J., CHANDLER AND KING, JJ., JOIN THIS OPINION.