                         IN THE SUPREME COURT OF MISSISSIPPI

                                      NO. 2002-CT-00317-SCT

STEVE JASPER

v.

STATE OF MISSISSIPPI


                                    ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                                  1/18/2002
TRIAL JUDGE:                                       HON. ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED:                         WAYNE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                            LESLIE D. ROUSSELL
ATTORNEY FOR APPELLEE:                             OFFICE OF THE ATTORNEY GENERAL BY:
                                                   JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                                 BILBO MITCHELL
NATURE OF THE CASE:                                CRIMINAL - FELONY
DISPOSITION:                                       AFFIRMED - 04/29/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

        EN BANC.

        SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.     Steve Jasper was convicted in the Circuit Court of Wayne County of felony shoplifting and

sentenced as a habitual offender to five years in the custody of the Mississippi Department of Corrections.

Jasper appealed, and the Court of Appeals affirmed. Jasper v. State, 858 So. 2d 149 (Miss. Ct. App.

2003). Jasper filed his petition for writ of certiorari asserting that the Court of Appeals "side-stepped" the

issues raised in his direct appeal, and this Court granted certiorari.

¶2.     The claim of error in sentencing Jasper as a habitual offender and the claim of error in denying

Jasper's request for a lesser included jury instruction have no merit, and this Court will not address those
issues. Only Issue II of Jasper's claims merits discussion here. The trial court erred in admitting the

testimony of a jailer who overheard remarks made between Jasper and his attorney and the district attorney

in the course of plea negotiations. However, we find the error to be harmless under the facts of this case.

                            FACTS AND PROCEDURAL HISTORY

¶3.     The following facts are taken from the Court of Appeals’ opinion:

                On April 10, 2001, Jasper entered Hutto Furniture in Waynesboro. Jasper looked
        around the furniture store at various items. One of the employees asked Jasper if he
        needed assistance. According to Mr. Hutto, owner of the store, Jasper was the only
        individual in the store besides the employees.

                  Mr. Hutto and the employees "heard some racket, like something had jarred the
        door." The buzzer sounded on the door. Jasper was no longer in the store. One of the
        employees noticed a red Grand Am had pulled out of the parking area next to the store.
        Mr. Hutto indicated that while looking outside the store, he and one of the employees
        noticed that "part of the mounting brackets and all of the air conditioner was on the side
        walk. At that time we realized that -- and then we looked and seen the air conditioner was
        gone." The mounting brackets were located on the sidewalk just outside the door. Mr.
        Hutto and one of the employees saw the vehicle leaving the parking area and followed it.
        Mr. Hutto followed the vehicle to the parking lot of the local Wal-Mart and called the
        sheriff's department which put him through to the police department.

                The occupants of the vehicle came out of Wal-Mart, got in the vehicle and left.
        Mr. Hutto was on his cell phone with the dispatcher giving information regarding the
        vehicle's direction of travel. Officer Robert Owen of the Waynesboro Police Department
        was directed to the area and pulled the vehicle over, with Jasper the driver.

                 Officer Owen testified that "[w]hen I got the vehicle stopped, as I was getting out
        and walking up to the vehicle, the driver stepped out of the vehicle and began walking
        back toward me. I asked him for his driver's license and identification. He didn't have any.
        He gave me a name of Steve Jasper and said that he did not have a driver's license. And
        at the time, I placed him under arrest for driving without a driver's license." Officer Owen,
        along with other officers on the scene, did an impound inventory of the vehicle prior to it
        being towed. Officer Owen indicated that "there was a GE air conditioner in the trunk of
        the vehicle." While at the scene, Mr. Hutto looked at the air conditioner and indicated that
        he thought it was one of his air conditioners missing from the display shelf. Officer Owen
        photographed the air conditioner at the scene, both in the trunk of the vehicle and after it
        was removed from the vehicle and turned it back over to Mr. Hutto.



                                                     2
                Mr. Hutto testified that once he took the air conditioner back to the store, he
        confirmed the serial number and model number off that air-conditioner with the store's
        records. He indicated that the information matched. Mr. Hutto stated that the price of this
        particular GE air conditioner was $379.

Jasper, 858 So. 2d at 150-51.

                                               ANALYSIS

        I.      Whether the Trial Court Erred by Allowing Deputy Kevin Stevens
                to Give Testimony Regarding Privileged Information.

¶4.     The admission of Stevens's testimony was error; however, the evidence was more than sufficient

for conviction without that testimony. Therefore, in view of our case law in this area, the admission of the

testimony was harmless error.

¶5.      At trial, the State called Deputy Kevin Stevens to testify that he heard Jasper say that the air

conditioner that he had stolen was not worth more than $250.00. Jasper objected to this testimony

because the comment was overheard during plea negotiations, at the time when Deputy Stevens’s presence

was not known or expected. Jasper cites Evans v. State, 725 So.2d 613 (Miss. 1997), and M.R.E.

410 for the proposition that that this statement was a communication made by a client to an attorney and

District Attorney during plea negotiations and, as such, was not admissible.

¶6.     The only evidence in the record with regard to this testimony is the trial transcript and the defense

counsel's objection to Stevens as a witness. Stevens testified that he believed the parties were discussing

a plea petition when he entered the courtroom and overheard the remark. Jasper also testified that he was




                                                     3
discussing and considering a plea agreement at the time this comment was overheard.1 The District

Attorney claimed not to remember engaging in a plea negotiation with Jasper on that day.

¶7.     As Jasper correctly argues, a statement made during plea negotiations is privileged and its

admission is prohibited by M.R.E. 410(4), which provides, in pertinent part:

        Except as otherwise provided in this rule, evidence of the following is not, in any civil or
        criminal proceeding, admissible against the defendant who made the plea or was a
        participant in the plea discussion:
                 (4) Any statement made in the course of plea discussions with an attorney for the
        prosecuting authority which does not result in a plea of guilty or which results in a plea of
        guilty later withdrawn.

This Court has held that statements made by the defendant during plea negotiations are inadmissible where

the following two-tiered analysis is satisfied: the accused exhibits an actual subjective expectation to

negotiate a plea at the time of the discussion, and; where the accused's expectation was reasonable given

the totality of the circumstances. Barnett v. State, 725 So.2d 797, 800 (Miss. 1998); Evans v. State,

725 So. 2d at 640.

¶8.     The trial court erred in allowing Stevens to testify about what he overheard in a discussion between

the defendant, defense counsel and the District Attorney. The testimony of both Jasper and Stevens

indicates that both men believed that the parties were engaged in plea negotiations at the time that the

remark was overheard. The District Attorney could not remember. In finding the testimony admissible, the

trial court and the Court of Appeals appear to rely on the fact that Jasper was not making the remark

directly to Stevens or in response to a question by Stevens. However, this is not the correct analysis of

admissibility under our case law.

        1
          Jasper also asserts that he did not say that he had stolen an air-conditioner of lesser value--
but, instead that the air-conditioner found in his trunk that day was a 5,000 BTU unit rather than an
8,000 BTU unit, as the indictment charges.


                                                     4
¶9.     The admission of Stevens's testimony as to what he overheard when Jasper, his attorney and the

prosecutor were engaged in plea negotiations was error and, arguably, violates Jasper's constitutional right

to a fair trial. In that regard, reversal of the conviction is required unless the Court determines that the error

was harmless. Hoover v. State, 552 So.2d 834, 840 (Miss. 1989). In Hoover, the exclusion of a prior

inconsistent statement sought to be admitted by the defendant was found to be an error "harmless beyond

a reasonable doubt." Id. at 841. The U.S. Supreme Court established the determination of harmless error

for violations of constitutional rights, holding that "the question is whether there is a reasonable possibility

that the evidence complained of might have contributed to the conviction." Chapman v. California, 386

U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967) (citing Fahy v. Connecticut, 375 U.S. 85, 86-

87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963). The error in Chapman involved the prosecution's

comments on the defendant's failure to testify, and the Court declined to find the error harmless, holding

that the State failed to demonstrate that the prosecution's comments did not contribute to the conviction.

The Court noted that such violations of fundamental rights as denial of right to counsel and introduction of

a coerced confession are not harmless errors. 386 U.S. at 26.

¶10.    Under the facts of this case it is certainly reasonable and more probable that Jasper would have

been convicted despite Stevens's testimony where the air conditioner was found in the trunk of his car only

minutes after it was taken from Hutto's. We hold that the trial court should have excluded Stevens's

testimony; however, we find, beyond a reasonable doubt, that the evidence was sufficient for conviction

without that testimony. Therefore, the admission of the testimony was harmless error.

                                              CONCLUSION

¶11.     The trial court erred in admitting the testimony of a jailer who overheard remarks made between

Jasper and his attorney and the District Attorney in the course of plea negotiations. However, other

                                                        5
evidence was sufficient for conviction without that testimony and the admission of the testimony was

harmless error. Jasper’s other issues are not addressed as the claim of error in sentencing Jasper as a

habitual offender and the claim of error in denying Jasper's request for a lesser-included offense jury

instruction have no merit. Therefore, the judgments of the Court of Appeals and the circuit court are

affirmed.

¶12.   AFFIRMED.

       WALLER AND COBB, P.JJ., EASLEY, CARLSON, GRAVES AND DICKINSON,
JJ., CONCUR. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.




                                                  6
