                   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.




                                             16
