IN THE SUPREME COURT OF MISSISSIPPI

NO. 95-KA-00353-SCT

BILLY JOE BARNETT

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 09/30/94

TRIAL JUDGE: HON. JOSEPH H. LOPER, JR.

COURT FROM WHICH APPEALED: ATTALA COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: P.J. TOWNSEND

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: DEWITT ALLRED

DISTRICT ATTORNEY: DOUG EVANS

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REVERSED AND REMANDED - 06/11/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 8/21/98

EN BANC.

McRAE, JUSTICE, FOR THE COURT:

¶1. Billy Joe Barnett appeals from a jury verdict in the Circuit Court of Attala County finding him

guilty of the murder of Jerry Tavares. The appellant brings forth numerous issues, including whether

the admission into evidence of a statement made during plea discussions constituted reversible error.

Because we find that the admission of the statement was error and violated the rules of evidence, we

reverse and remand this cause for further proceedings consistent with this opinion.

I.

¶2. Jerry Tavares was killed on or about the night of May 11 or the morning of May 12, 1992. On

May 12, 1992, Gloria Guillory discovered Jerry Tavares's body on a county road about a mile from

Highway 12 toward McCool and the Attala-Choctaw County line. Tavares was in the road in front of

a Chevrolet Blazer. Guillory notified law enforcement, and sheriff's department personnel

subsequently investigated the scene.

¶3. Two nine-millimeter bullet shells were recovered near Tavares's body. According to the

pathologist, Dr. Steven Hayne, there were multiple gunshot wounds-- one over Tavares's left temple,
two in the back to the left, and one in the mid-chest field. The cause of death was determined to be

gunshot wounds delivered by a large-caliber weapon, consistent with a nine-millimeter handgun. On

January 5, 1994, a nine-millimeter automatic pistol and a bullet clip were pulled from a Clay County

creek. Ballistics tests confirmed that the gun was the same one used to shoot and kill Jerry Tavares.

¶4. On February 16, 1994, Billy Joe Barnett was indicted with Ilene Tavares, Glen Dale Davis and

Bennie Cork for the capital murder of Jerry Tavares on May 11, 1992, under Miss. Code Ann. § 97-

3-19(2). Barnett was re-indicted on September 6, 1994, in a two-count indictment charging capital

murder and conspiracy to commit capital murder. On September 15, 1994, Barnett was arraigned on

this superceding indictment. The conspiracy count was eventually severed, and Barnett went to trial

on September 27, 1994 on the capital murder charge. The prosecution sought the death penalty.

¶5. On September 30, 1994, the jury returned a verdict of guilty on the capital murder charge. On the

same day, in the sentencing phase, the jury found that Barnett should be sentenced to life

imprisonment without parole. The trial court entered judgment accordingly, and Barnett timely

appeals.

II.

¶6. Because of our disposition of this issue and its impact upon this matter, we first address Barnett's

contention that the statement he gave on September 20, 1994 was precipitated by plea negotiations

and therefore should not have been admitted into evidence.

¶7. The State counters that the statement was not made in the context of plea negotiations with a

prosecuting attorney, but instead was initiated by Barnett and his attorneys and given to a law

enforcement officer. The trial court admitted the statement, determining that the statement was

merely an "interview by law enforcement to find out what Mr. Barnett knew about the case."

¶8. Mississippi Rule of Evidence 410 governs the admissibility of statements made during plea

negotiations and provides in pertinent part that:

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 discussions:

(1) A plea of guilty which was later withdrawn;

(2) A plea of nolo contendere;

(3) Any statement made in the course of any proceedings under Mississippi statutory or rule of

court provisions regarding either of the foregoing pleas;

or

(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.

¶9. This Court recently addressed the admissibility of statements made during plea discussions in
Evans v. State, 725 So. 2d 613 (Miss. 1997). There, the defendant was charged in the neighboring

state of Louisiana with kidnapping a ten-year-old girl. He was subsequently transferred to Mississippi

where he confessed to murdering the child. A Mississippi grand jury indicted him for capital murder

with the underlying felony of kidnapping and two counts of sexual battery.

¶10. At the trial, the State sought to introduce Evans's confessions. He argued that his confessions

were the product of plea negotiations with the federal government. The evidence indicated that an

Assistant United States Attorney (AUSA) had informed Evans's attorney, "if this guy ever wants

anything out of us he better tell us where the child is if the child is alive." The AUSA requested a

meeting with Evans in an attempt to locate the child. After several hours of discussions between

defense counsel, Evans's girlfriend, Evans, and the AUSA, the defendant agreed to reveal the location

of the child's body if certain conditions were met. These conditions were written by the AUSA on a

sheet of paper as Evans dictated them. The crux of the conditions was that Evans wished to plead

guilty to the federal crime of kidnapping and to remain under federal custody and control.

¶11. The AUSA told the defendant that he was unable to make promises, but he agreed to prosecute

the defendant on the federal kidnapping charge if there was a factual basis for the crime. He wrote on

the paper that he would use whatever influence he had to insure that Evans's desires be carried out.

Despite the discussions, no agreements were reached, and the AUSA ended the meeting after the

defendant failed to sign a document stating that he was advised of his right to remain silent.

Following the end of the meeting, the AUSA left the building, but not until he instructed the

remaining law enforcement personnel not to proceed in any way unless the defendant was advised of

his right to remain silent.

¶12. Following the AUSA's departure, the defendant drew up a document, acknowledging that he

had been advised by his attorney and a federal judge against making any statements. He then wrote

that the federal offense of kidnapping had been committed and that Louisiana and Mississippi could

not use the statement for any criminal purpose. Both the defendant and his attorney signed the

document. Evans refused, however, to sign a waiver of rights form although his attorney informed

him of the impact an incriminating statement would have on state charges.

¶13. Subsequently, the defendant gave his first of three statements in which he described the

kidnapping of the girl. In his second statement, he confessed to kidnapping and murdering the child.

He also gave a videotaped confession describing the kidnapping, murder, and, for the first time,

sexual assault of the ten-year-old child.

¶14. On appeal, the defendant argued that his confessions were made in conjunction with plea

negotiations. In addressing this issue, this Court noted the initial question, i.e., whether Evans's

confessions fell within the ambit of Rule 410. Rule 410 provides that inadmissible discussions are

those done "with an attorney for the prosecuting authority." We found that the statements were not

between Evans and a prosecuting attorney. Instead, the statements were made to a detective and FBI

agent. Moreover, the evidence there indicated that the AUSA stopped his talks with Evans and left

the jail prior to any statement being made. Furthermore, we noted that "'[d]iscussions with a law

enforcement agency in the spirit of cooperation and with hope for leniency, are not inadmissible

under [Mississippi law].'" Evans, 1997 WL 562044, at *10(quoting United States v. Keith, 764 F.2d

263, 265 (5th Cir. 1985)). Thus, we concluded that the defendant was not engaged in the type of
discussions contemplated by Rule 410. Id.

¶15. Additionally, this Court found that Evans was not involved in "plea negotiations," relying upon

the reasoning in United States v. Robertson, 582 F.2d 1356 (5th Cir. 1978) in which the Fifth Circuit

addressed whether statements made by defendants were inadmissible at a subsequent criminal trial

under Fed. R. Evid. 410 and Fed. R. Crim. Prac. 11(e)(6)-- both of which mirror our Rule 410. We

found the Fifth Circuit's analysis instructive, wherein that Court explained:

[p]lea negotiations are inadmissible, but surely not every discussion between [an] accused and

agents for the government is a plea negotiation. Suppressing evidence of such negotiations

serves the policy of insuring a free dialogue only when the accused and the government actually

engage in plea negotiations: "discussions in advance of the time for pleading with a view to an

agreement whereby the defendant will enter a plea in the hope of receiving certain charge or

sentence concessions."

Evans, 725 So. 2d at 640 (quoting Robertson, 582 F.2d at 1365). The Fifth Circuit also directed trial

courts to carefully consider the totality of the circumstances to determine whether a discussion

should be characterized as a plea negotiation. Robertson, 582 F.2d at 1366. The Court established a

two-tiered analysis to be used to that end. First, a court should determine whether the accused

exhibited an actual subjective expectation to negotiate a plea at the time of the discussion. Then, it

should be determined whether the accused's expectation was reasonable given the totality of the

circumstances. Id.

¶16. Applying the Robertson analysis to the facts and circumstances of Evans, we concluded that

Evans's statements were not made during plea negotiations for the following reasons: 1) the AUSA

repeatedly testified that he was not engaged in "plea negotiations" with the defendant; 2) both the

AUSA and Evans's attorney maintained that while "some agreements" were made, they were not

"necessarily tied to" a plea; and 3) the AUSA, the only governmental officer with the authority to

enter plea negotiations with the defendant, terminated discussions with the defendant after he refused

to sign a waiver form and left the building. No plea bargain terms had been established or accepted by

either party before the AUSA left the building. Still further, the evidence indicated that, when the

AUSA left, Evans and his attorney were advised that it was now a state--not federal--investigation.

We therefore concluded that Evans's expectation that his confessions would not be used in a state

prosecution against him was unreasonable given the totality of the preceding circumstances. Evans,

1997 WL 562044, at *13 (citing Robertson, 582 F.2d at 1366).

¶17. Here, an entirely different situation is presented than the one this Court faced in Evans. The

State relies heavily upon the fact that Barnett made his statement to a law enforcement officer and

that the prosecuting authority entered the interviewing room only after Barnett was given his

Miranda rights to argue that Barnett had an unreasonable expectation and that Rule 410 is

inapplicable. For several reasons, we are unpersuaded that simply because a statement is given to a

police officer instead of a prosecutor who is nevertheless present and simply because the prosecutor

entered the room after the defendant was given his Miranda warnings the statement does not fall

within the prohibitions of Rule 410.

¶18. First, there is the testimony of Lieutenant Hathcock, who took Barnett's statement, that he was

under the impression Barnett was giving the statement as part of a plea bargain. Another telling fact,
although not as strong as Hathcock's testimony, is the prosecutor's own words at the interview after

Barnett and his attorney returned to the room -- that "the deal" was off because Barnett was not

telling the truth and as a result he was going to trial and seeking the death penalty. The prosecutor's

remark clearly indicates that there had been some discussions between Barnett and the prosecuting

authority that he would provide a corroborating statement in exchange for the State not seeking the

death penalty. In addition to this fact, the prosecutor was obviously in control of the interview

because it was the prosecutor who unilaterally called the deal off.

¶19. Moreover, unlike in Evans, Barnett's agreement to give a statement about the murders less than

a week before his trial was set to start was inextricably tied to "the deal" struck with the State. In

Evans, we concluded that the agreements were not tied to the plea, but instead constituted

independent admissions of facts given in hopes of receiving leniency--specifically to remain in federal

custody. Here, however, Barnett was interested in not facing the death penalty and he was offered

just that concession by the State if and only if he gave a statement. Simply put, Barnett's giving the

statement was the quid promised in exchange for the State's quo, the promise not to seek the death

penalty.

¶20. Based upon the totality of the circumstances, we conclude that Barnett's expectation that he was

negotiating a deal which would not be used against him at trial was reasonable, that the statement

was given in conjunction with plea negotiations, and that Rule 410 prohibited the admission of the

statement at trial. Accordingly, we reverse and remand this matter.

BANKS, JUSTICE, FOR THE COURT:

III.

¶21. Barnett's final contention that will be addressed by this Court is that his sentence violated the ex

post facto laws of the state and federal constitutions. Jerry Tavares was killed in 1992. Under the

applicable statute, a jury could sentence Barnett to either death or life in prison. Miss. Code Ann. §

97-3-21. That provision was amended in 1994 to allow the option of life in prison without parole.

The jury sentenced Barnett to life without parole, a punishment that was not permitted under the

statute in effect when the crime was committed. Thus, he argues that his sentence is void. We cannot

agree for reasons set out below.

¶22. The appropriate time for Barnett to have objected to the life without parole sentencing option

was at the point that the jury was given its instructions, at the latest. It is axiomatic that a litigant is

required to make a timely objection. Crenshaw v. State, 520 So. 2d 131, 134-35 (Miss. 1988).

Barnett brought up the ex post facto violation in his request for new trial; however, it is our

conclusion that even then it was not timely -- given that the verdict had already been returned. While

certain issues are required to be raised in a motion for new trial, raising objections there which should

have been made at trial has never been thought to cure the failure to object at the proper time.

Objections to jury instructions made after the jury has returned a verdict and been discharged is

simply too late. Pinkney v. State, 538 So. 2d 329, 346 (Miss. 1988), vacated on other grounds by

494 U.S. 1075 (1990)(noting that issue raised for first time in motion for new trial was procedurally

barred); Anderson v. Jaeger, 317 So. 2d 902, 907 (Miss. 1975) (holding same).

¶23. Additionally, we have, on occasion, ordered that the life without parole option be allowed to
defendants facing trial after the statute was amended for capital offenses occurring before the

enactment of the amendment. E.g., Woodward v. State, 95-0144, 9/11/95 Order (issuing mandamus

ordering trial judge to apply amended statute). There, we reasoned that a sentence of life without

parole is ameliorative (and thus did not pose an ex post facto problem) in that it provides a

punishment less harsh than death. See also Lockett v. Ohio, 438 U.S. 586, 598 (1978)(stating that

capital juries must be allowed to hear any evidence that would tend to support a sentence less than

death); Zant v. Stephens, 462 U.S. 862, 884-85 (1983) (announcing the heightened need for

reliability and due process in capital cases because death is a punishment different from and more

severe than all others).

¶24. In this case, although the record does not reflect a specific request by the defendant, it is clear

Barnett was aware that the sentencing option of life without parole would be given to the jury, and it

is also clear that he relied upon the option he now complains of to escape the harsher penalty of

death. We refuse to allow Barnett to now claim that a life without parole sentence violates ex post

facto laws. Barnett waived his ex post facto claim with respect to the life without parole sentencing

option adopted in 1994. Barnett's waiver of the ex post facto violation in this instance shall remain in

effect for the duration of this case.

IV.

¶25. Because the statement given by Barnett on September 20, 1994 was clearly done in conjunction

with plea negotiations and because our Rule 410 expressly prohibits the admission of such statements

in evidence at trial, we reverse this matter and remand for further proceedings consistent with this

opinion.(1)

¶26. PARTS I AND II: REVERSED AND REMANDED FOR PROCEEDINGS

CONSISTENT WITH THIS OPINION.

McRAE, J., PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, ROBERTS AND

SMITH, JJ., CONCUR. MILLS AND WALLER, JJ., NOT PARTICIPATING.

PART III: REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH

THIS OPINION.

BANKS, J., PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., ROBERTS AND SMITH,

JJ., CONCUR. McRAE, J., DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

MILLS AND WALLER, JJ., NOT PARTICIPATING.

McRAE, JUSTICE, DISSENTING IN PART:

¶27. Disagreeing with the majority, I would find that Barnett's sentence to life in prison without

parole was a violation of the Ex Post Facto Clause of article 3, section 16 of the Mississippi

Constitution.

¶28. In 1992, when Jerry Tavares was killed, pursuant to Miss. Code Ann. § 97-3-21 (Supp. 1977), a

jury could sentence Barnett to death or life in prison. The statute was amended, effective July 1,
1994, so that the penalties prescribed for capital murder are death, life imprisonment without the

possibility of parole, or life imprisonment. Barnett claims that he should have been sentenced to life in

prison under Miss. Code Ann. § 97-3-21, prior to its 1994 amendment, rather than being sentenced

to life without parole.

¶29. The Ex Post Facto Clause is aimed at laws that retroactively alter the definition of crimes or

increase the punishment for criminal acts. Puckett v. Abels, 684 So. 2d 671, 673 (Miss. 1996). "One

convicted should be sentenced pursuant to the statute existing on the date of his offense to avoid an

ex post facto problem." Johnston v. State, 618 So. 2d 90, 94 (Miss. 1993). While an ex post facto

claim is procedurally barred if it is not raised in the trial court, Butler v. State, 608 So. 2d 314, 321

(Miss. 1992), here the defense did raise an ex post facto claim in its motion for new trial. Cf. Watts v.

State, 492 So. 2d 1281, 1291 (Miss. 1986)(finding that defendant was procedurally barred from

raising issue on appeal, since it was not listed as grounds in his motion for j.n.o.v. or a new trial);

Colburn v. State, 431 So. 2d 1111, 1113-14 (Miss. 1983)(noting that because there was no mention

of constitutionality of statute in the motion for new trial, the appellant was procedurally barred from

presenting it for the first time on appeal).

¶30. This Court, in Lanier v. State, 635 So. 2d 813, 816 (Miss. 1994), recognized that a sentence

that is not authorized by law, even if agreed to by the parties, is void ab initio. In Lanier, the State

and defendant Lanier agreed that Lanier would plead guilty to capital murder and would be sentenced

to life imprisonment without parole. Id. at 815. However, at that time, the sentencing options

available to a person convicted of capital murder were life imprisonment or death; life imprisonment

without parole was only possible if the defendant was an habitual offender. Id. at 816. This Court

determined that since Lanier was not indicted as an habitual offender, a life sentence qualified by the

preclusion of parole was not available to him. Id. Similarly, the jury had already decided against the

death penalty for Barnett; his only alternative sentence pursuant to Miss. Code Ann. § 97-3-21, as it

existed at the time of the offense, was life imprisonment. Therefore, Barnett's life sentence could not

have been qualified by the preclusion of § 97-3-21, as it existed after Jerry Tavares was killed, since

the option of life imprisonment without parole was not in existence at Tavares's death. See Lanier,

635 So. 2d at 816; Johnston, 618 So. 2d at 95-96.

¶31. The rationale of Irving v. State, 441 So. 2d 846, 852 (Miss. 1983), as advanced by the State, is

not applicable. "Where there is a state constitutional entitlement to some due process right, the State

may not enact legislation to impede that right under ex post facto analysis." Hill v. State, 659 So. 2d

547, 551 (Miss. 1994). See also Johnston, 618 So.2d at 95 (holding that ex post facto prohibitions

bar retroactive applications of statutory law unless the changes are "procedural and ameliorative").

The changes made to Miss. Code Ann. § 97-3-21 affected a substantive right of Barnett, i.e., his right

to be sentenced under the statute existing on the date of his offense. Johnston, 618 So.2d at 94. Here

there was an obvious change in the quantum of punishment attached to the crime. See Miller v.

Florida, 482 U.S. 423, 434-35 (1987) (holding that the operation of more severe sentencing

guidelines to crimes that were committed before the guidelines' establishment constituted an increase

in the "quantum of punishment" and violated the Ex Post Facto Clause). Therefore, these changes are

barred under our state constitutional provisions against ex post facto law. Miss. Const. art. III, § 16.

Barnett was entitled to be sentenced under the statute in place at the time of Tavares's death. By

failing to do so, the trial judge erred as a matter of law.
¶32. While the majority contends that Barnett waived his ex post facto claim, it must be noted that for

such a waiver to be valid, Barnett must have knowingly and intelligently waived that specific

constitutional right. Barnett did not, and the trial court made no effort to see that he did. The majority

is reading into the record a waiver that was not made specifically. Competent lawyers were available

for both parties, and the majority should not engage in such lawyering of its own. Accordingly, I

dissent with regard to this portion of the majority opinion.

1. Barnett raises several other assignments of error that this Court has carefully reviewed and found

without merit. We, therefore, decline to address the remaining assignments of error.