IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KA-00719-COA MICHAEL RAY FONTAINE A/K/A MICHAEL FONTAINE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 11/04/2011 TRIAL JUDGE: HON. ROBERT B. HELFRICH COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 03/13/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GREENLEE, J., FOR THE COURT: ¶1. On Novem

ber 3, 2011, a jury in Forrest County Circuit Court f ound Michael Fontaine guilty of burglary o f a nonresidential dwelling and conspiracy to com m it b urglary of a nonresidential dwelling. F ontaine appeals claim ing (1) the circui t c ourt erred by not allowing the f ull audio-recorded poly graph interview to be p lay ed when the State play ed a two-m inute excerpt; (2) the circuit court erred in excluding the af f idavit of a d eceased c o-def endant; (3) prosecutorial m isconduct denied Fontaine a f air trial; (4) insuf

f icient evidence supported the verdicts; and (5) the verdicts were a gainst the overwhelm ing w e i ght of the evidence. Findingno error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. O n J u n e 2 3 , 2 0 10, Petal Police D epartm ent Of f icer Rick Varner res p o n d e d t o a burglary call at a local trailer park. Upon arrival, Of f icer Varner spoke with W illiam Cooley , who e xplained that he and his wif e were in t he process of m o ving and t hat his t railer had been burglarized. W illiam showed Of

f icer Varner the window that the perpetrator used to

enter his trailer and, at the request of O f f icer Varner, listed the item s that were stolen: rods and reels, NASCAR collectibles, several CDs, DVDs, and bow and arrows. ¶3. Petal P o l i c e D e p a r t me n t I n v e s t i g a t o r Kevin Bullock was dispatched to f urther investigate the s cene along with Of f icer Varner. T he o f

f icers, receiving inf

orm ation that the stolen item s m ight be in another trailer at the sam e park, walked o ver to that trailer, which

was owned by Mark W alker. Arriving at t he trailer, the of f icers were me t by W alker, his girlf riend Aundrea McDaniel, and his co-worker Fontai n e . A ft e r obtaining W alker’s consent
to search the trailer, the of f icers asked if there was any h unting or f ishing equipm ent in the trailer about which they needed to know. F ontaine responded that there w as a child’s “Snoopy rod and reel” that he had bought f or his kid. 1 ¶4. The of

f icers proceeded to e nter the trailer and f ound several of the item s reported as stolen o n the d e n’s f

loor in plain view. Furt h e r , t h e of f icers o bserved additional item s reported as stolen in W alker’s living room and the Fontaines’ bedroom

. Upon entering the

1 A t th e t im e o f th e b u rg lary , F o n tain e, h is w if e, an d t h eir tw o ch ild ren liv ed in a b ed ro o m in Walk er’s trailer. T h e F o n tain es o c cu p ied o n e o f th e traile r ’ s b e d ro o m s, an d Walk er an d M cD an iel o ccu p ied th e o th er b e d ro o m . 2Fontaines’ bedroom , Of f icer Varner observed a partially o p e n c l o set and looked inside it, revealing two BB guns that allegedly were stolen. Additionally , af ter rem oving a m attress that was w e d g ed behind the closet door, Of f icer Varner f

ound several rods and reels, a Browning bow a nd arrows, NASCAR item s, and a l a r g e b a g c o ntaining C Ds a nd m ovies. Af ter com plet i ng their search, the of f icers took the Fontaines, W a lker, and McDaniel into custody

. ¶5. Af ter reading F ontaine his Miranda r ights, 2 Of f i cer Varner placed Fontaine inside the back of his patrol car. According to Of f icer Varner, when Detective Bullock walked out of
W a lker’ s t r a i l er w ith r ods and reels, Fontaine claim ed they belonged to his b rother Tony Fontaine. However, at Fontaine’s trial, Tony testif ied otherwise. ¶6. A f t e r b e i n g t a k e n i n t o police custody , Fontaine provided a writ t e n s t a t e me n t explaining his whereabouts on the day of the burglary

. According to his w ritten statem ent, Fontaine g ot hom e f

rom work a t approxim ately 3 :33 p.m . and took a bath. Th e s t a t em ent f urther explained that he heard a noise and s aw W alker carry i ng a “basket o f som ething.” Fontaine then returned to his room , took a nap until 4:30 a.m ., and went to work. ¶7. On May 16, 2011, a grand jury indicted Fontaine as a habitual of f ender on one count of burglary o f a nonresidential dwelling and one count of conspiracy to com m it burglary of

a nonresidential dwelli n g. Fontaine’s trial was set f or Novem

ber 2 , 2011. Several day s bef ore trial, Fontaine f

iled a notice of intent to i ntroduce a s evidence a n af f i davit f rom W a lker, who r e cently had died. In this af f idavit, executed on J anuary 6 , 2 011, W alker denied

2 S ee M ira n d a v. A rizo n a , 3 8 4 U .S . 4 3 6 (1 9 6 6 ).

3that Fontaine w as present when the burglary o ccurred. Instead, W alker claim ed that he was

t he only person in Cooley ’s trailer. The State f iled a m o tion in lim i ne t o prevent Fon t a i n e f rom introducing W alker’s af f idavit at trial. Following a hearing, the circuit court f ound the af f idavit was pure hears ay and untim ely

. The circuit court granted the State’s m otion to exclude the af

f idavit f rom evidence. ¶8. At Fontaine’s trial, Mc D a n i e l t e s t i f i e d f o r t he S tate and said that she m et with Fontaine and W alker in t h e k i t c h e n of W alker’s trailer to discuss going into “[ Cooley ’s] trailer and take s om e things.” Further, s he testif ied that when t hey went down to the trailer they tried to go through the f r ont door , b u t i t w a s locked. So they went to t he back of the trailer w here W alker went through a w i n d o w a n d then opened the f ront door f

or her and Fontaine. McDaniel stated that once inside Cooley ’s trailer, they began “gathering stuf f up in a big ‘ol blue tote” and started hauling it down to W alker’s trailer. She explained that they

m ade two trips to Cooley ’s trailer to collect “stuf f ,” which included DVDs f rom the living

room , a D al e E arnhardt plaque, b ow and arrows, and rods and reels f rom the bedroom s. Finally , McDaniel t estif

ied that t he next day , she and F ontaine’s w if e Miranda h id t he stolen item s in the bedroom

closets of

W alker’s trailer. ¶9. The State’s next witness to testif y was D a v i d C l a y

t on, a poly grapher retained by def ense counsel w ho interviewed Fontaine prior t o t r i a l

. D u ring his testim ony , the State

m oved to introduce a two-m inute portion of h is i n terview w ith Fontaine into e vidence. Counsel f or Fontaine objected to t he introduction of the two-m inute excerpt o n the grounds

t h a t t he c i rcuit court should adm it the rem ainder of Fontaine’s a udio-recorded poly grap h

4interview instead of just the excerpt. T he j udge, o verruling the d ef ense’s objection, allowed the two-m inute excerpt to be play ed. Counsel f or F ontaine, w ho had control of the audiorecorded interview, never prof f ered the rem a inder of the recording. ¶10. A s a d mi t t e d i n t o e v i d e n c e , t h e t w o - mi nute audio-recorded excerpt reveals a

conve r sation between Fontaine and Clay ton where Fontaine tells Clay ton his whereabouts

on the day of the alleged burglary

. During this conversation, F ontaine explains that his wif e

was interested in looking at Cooley ’s trailer and as a r esult w ent with W alker and McDaniel

to look a t i t. Fontaine claim ed that they only looked i nside the trailer w indows but also said he awoke later that night to W alker returning with a big blue bag. Further, Fontaine stated that the next day

W alker m entioned he had a signed Dale Earnhardt p icture. Fontaine also claim ed that h e overheard part o f a phone c o n v e r s a tion in which W alker and McDaniel discussed “putting som ething som ewhere[ .]” ¶11. T h e j u r y a l s o h e a r d t e s t im ony f rom Kim berley C ooley , th e c o - o w n e r o f t h e burglarized trailer. She testif ied that she recently overheard a c o nve rsation between Fontaine and his bail bo n d s ma n. 3 She explained that Fontaine told his bondsm a n t hat McDaniel allegedly h ad called the Cooley s a nd received p erm ission to enter their trailer. Fontaine also purportedly told the bondsm an that he entered the Cooley s’ t railer with his wif e, W alker, and McDaniel, and t hen the f o u r o f t h em transported the Cooley s’ s tolen p roperty to W alker’s trailer. She testif

i ed that Fontaine asked his b ondsm an if he could apologize to the Cooley s. Kim berly testif

ied that upon hearing these com m ents she reported them to t he p olice. She

3 F o n tain e’s b ail b o n d s m an su b seq u en tly w as id en tif ied as T o n y G rav es. 5also t estif

ied t hat neither she nor her husband ever gave the Fontaines, W alker, or McDaniel
perm ission to enter their trailer. ¶12. During the def

ense’s case-in-chie f

, F o n t a i n e ’ s w if

e Miranda was called to testif y about the day o f

the burglary

. She testif

ied that she went t o a d octor’s appointm ent, where she was prescribed m edication f o r m igraines. She f

urther explained that on t h e d ay of the incident, s he r eturned f

rom her doctor’s appointm ent, took her m igraine m edication, and f ell asleep until the next mo r ning. Further, she denied seeing any of the stolen p roperty in
W a lker’s traile r a n d had no recollection of what happened. She explained that while her f am ily rented a bedroom

in W alker’s trailer, they used only one of the two closets because the other closet contained W alker’s m other’s possessions and was of f lim its. ¶13. Fontaine also testif ied on his own behalf a nd d e n i e d p a rticipating in the burglary

. Fontaine stated that on the night o f the burglary , he w as walking his daughter over to her f riend’s house to spend the night when they cam e u pon W alker and McDaniel. According

to F ontaine, McDaniel pointed o u t the Coo l ey s’ trailer a s the one his wif e wanted to rent. He testif ied that he brief

ly walked over to the t railer but soon l ef t returning to walk his daughter to her f

r iend’s hom e. Fontaine f urthe r t e stif

ied that, upon returning t o W alker’s trailer, he spoke with McDaniel about the Cooley s’ trailer, explaining to her that he did not really get a chance to look at it. According to Fontaine, McDaniel told him that she would

m ake som e calls and gather inf orm ation about the trailer. ¶14. That night, according to Fontaine, he continued his usual nighttim e routine until his hom esick daughter returned hom e. As he was a bout to go back to sleep, Fontaine testif ied

6that he heard a n oise and saw W alker returning to the trailer with a large blue tote. The next

day , Fontaine stated that he was at dinner with W alker when W alker told him that he had a Dale Earnhardt picture. Fontaine testif ied, however, that he k

new W alker did not own such an item and that he had a “good idea” it was stolen. ¶15. Af ter considering the evidence i n t h e c ase, the jury f ound F ontaine g uilty of

both burglary of a nonresidential dwelling and conspiracy to com m it burglary o f a n onresidential dwelling. Accordingly , t h e circuit c ourt sentenced him to seven y ears f or burglary of a nonresidential dwelling and a conse c utive f ive-y e ar sentence f

o r conspiracy to com m it burglary of a nonresidential dwelling. ¶16. On Novem

ber 14, 201 1 , F o ntaine f

iled a m otion f

or judgm ent notwithstanding the verdict or, in the alternate, a new trial, which was denied. Aggrieved, Fontaine appeals. DISCUSSION
I. Whether The Circuit Court Erred When It Perm itted The State To Introduce A Tw o - M i nute Segm ent Of Fontaine’s R ecorded Statem ent Without Allow ing The R em a inder O f T h e Recording Into Evidence ¶17. This Court applies a n abuse of discretion standard of review when considering a trial court’s adm ission of evidence. C ooper v. State , 200 S o. 3d 1065, 1 074 (¶32) (Miss. Ct. App. 2016). Under this s tandard, “[ t]he t rial judge has am ple power in his sound discretion to lim it t he introduction into evidence of those portions of the recording w hich are relevant and

m aterial.” Sanders v. State , 237 Miss. 772, 777, 115 So. 2d 145, 147 ( 1959). “For a case to be reversed on the adm ission or exclusion of e vidence, i t m ust result in prejudice and harm

or adversely a f

f ect a substantial right of a party .” Harr e l l v
. S t a te , 179 So. 3d 16, 18 (¶9)

7(Miss. Ct. App. 2014).

¶18. Fontaine argues that the circuit court erred by overruling his objection and ref using

to adm it the entire audio-recorded poly graph interview af t er the S tate m oved to adm it a twom inute excerpt. He asserts t hat the State took the excerpt out of co n t e x t , a n d he contends “[ he] was, in f

airness, entitled to present and have t h e j u r y c o n sider the rem a i nder of the interview under the Rule of Com pleteness.” However, Fontaine’s f ailure to prof

f e r the f ull audio-recorded poly graph interview leaves this Court without the ability to assess whether the trial judge abused his discretion in not adm itting the whole interview. W ithout the whole audio-recorded poly graph interview, not only has F ontaine f ailed to preserve the issue on appeal, but also this Court cannot evaluate the interview’s e v identiary value or m ake any determ ination as to whether or not the trial court com m i tted any error. ¶19. In Mississippi, the Suprem e Court has m ade it clear that “[ appellate courts] adhere to the rule that a record prof f er of excluded testim ony

m ust be m ade to preserve the point f or appeal.” Thompson v
. S t a t e , 602 So. 2d 1185, 1188 (Miss. 1992). Further, i n B arron v. S t a t e , t h i s Court r eaf

f irm ed the necessity o f a prof f e r b eing m ade at the trial court level t o
preserve the issue f

o r appeal, stating that “bef ore we will consider the m atter on appeal the party m ust h ave s om ehow placed in the record the nature and substance of t he prof f ered evidence f

or our c onsideration.” Barron v. State , 130 So. 3d 531, 539-40 ( ¶32) (Miss. Ct. App. 2013). Theref

ore, w hile the record clearly i ndicates Fon t a i n e o bjected to the State’s introduction of just the two-m inute segm ent of the audio-recorded p oly graph interview, his f ailure t o prof

f e r the rem a ining contents or s u bstance of t h e a u d io-recorded poly graph

8interview constitutes a waiver of the issue on appeal. ¶20. Notwithstanding waiver of the issue, Fontaine’s f ailure to p rof

f er the rem ainder of

the audio-recorded poly graph inter view leaves this Court without the a bility to determ ine whether the trial court a

bused its discretion in not allowing adm i ssion of the w hole recording. Mississippi Rule of Evidence 106, known as the rule of com pletene s s , s t ates that when a party i n t r o d u c e s a ll or part of a writing, recorded statem ent, or a udio recording, then “the adverse party m ay require the introduction, at that tim e, of any o ther part--or any other writing or recorded statem ent--that in f airness ought to be considered at the sam e tim e.”
M.R.E. 1 06. However, the rule o f com pleteness “ does not n e c e s s a r i l y require t hat all the

rem ainder of

a docum ent m

ust be of f ered i nto evidence, but only that part which ‘ ought in fairness to be considered .’” W ashington v. State , 726 S o. 2d 209, 216 (¶33) ( Miss. Ct. App. 1998) (em

phasis added). The com

plete d o c u me n t , statem ent, or video a l so m u st be m ore probati v e t h a n p r ejudicial. Stribling v. State , 81 So. 3d 1155, 1160 (¶19) (Miss. Ct. App. 2011) ; see also M

. R.E. 403. The audio- r e c o r d e d poly graph interview also should be weighed under the other criteria contained in our rules o f evidence. E.g. , Rials v. Duckworth , 822 So. 2d 283, 287 (¶19) (Miss. 2002) (af f irm i ng the denial of

portions of

a police report into evidence under Rule 106 because the report contained hearsay ). ¶21. W i thout k

nowing the contents o r substance of the rem ain d e r of the audio-recorded poly g raph interview, this court cannot f airly assess the evidentiary value of the recording nor determ ine what ought in f airness be c o n s i d e r ed. “Of course a recorded statem ent m ay contain c onsiderable m aterial which is not relevant or m aterial

. . . [ , but] [ t]he trial judge has

9am

ple power in his sound discretion to lim it the introduction into e vidence of those portions of the recording which are relevant and m aterial.” S anders , 2 37 Miss. at 777, 1 15 So. 2d at 147. W ithout any r ecord of the r e ma inder of the audio-recorded p oly graph interview, this

court cannot assess whether the trial court determ ination was in error, m uch less an abuse of discretion.
II. Wh e t h e r T h e Circuit Court Erred In Ex cluding Walker’s Affidavit ¶22. Next, Fontaine argues that the circuit c ourt erre d i n e x c l u d i n g Wa l ker’s af f idavit because it w as exculpatory and ad mi s s i b l e a s a statem ent against interest pursuant to Mississippi Rule of E vidence 804(b)(3). As me n t i o n e d above, the circuit court, af ter a h e a r i n g on the m a tter, gave two reasons f or granting the State’s m otion i n lim i n e : (1) W alker’s af

f idavit w as untim el y n o t i c e d , and (2) W alker’s af f idavit w as pure hearsay

. Finding no error in the circuit court’s determ ination, we af f irm

. ¶23. First, the judge f

ound that Fontaine’s October 26, 2 0 1 1 , n o t i c e o f i n t e n t to use W a lker’s af

f idavit was untim ely

. Fontaine asserts that this was in error b ecause, according

to Fontaine, it was not a true alibi def ense and theref

ore did not have to be tim ely disclosed pursuant to the t hen- a p p l i cable Unif orm Circuit and County Court R ule 9.05. 4 In Mississippi, an alibi h as been d ef ined as “a def

ense that places the def

endant at the relevant tim e of crim e in a dif

f erent place than t he sc e n e i n v o l v ed and so rem oved theref rom as to render it im

possible f or him to be the guilty party .” J a ckson v. State , 743 So. 2d 1 008, 1014

4 A t th e tim e o f th e p re-trial h earin g U R C C C 9 .0 5 still w as i n u se. H o w ev er, a s o f Ju ly 1 , 2 0 1 7 , M ississip p i R u le o f C rim in al P ro ced u re 1 7 .4 ( a) h as b een a d o p ted an d rep laced U R C C C 9 .0 5

. 1 0(¶20) (Miss. Ct. App. 1999) (citing Black's Law D ictionary (6th ed.1990)). A cursory review

of W a l ker’s af

f idavit, which stated that W a lker was t he only person present a t the Cooley s’ trailer during the burglary a n d that Fontaine was not a t the trailer, 5 clearly places Fontaine in a dif f erent place than t h e s c e n e o f the crim e and theref ore i s an alibi def

ense subject to Rule 9.05’s notice requirem ent. ¶24. Pursuant to Unif

orm C ircuit and County C o urt Rule 9.05, any def endant w ho intends

to use an alibi def

ense m ust, within ten day s of receiving a writte n dem and f rom the prosecuting attorney , serve t he prosecutor written notice of his or her intent to of f er an alibi d e f e nse. See U RCCC 9.05 (2015). This notice m ust p rovide the prosecutor w i t h “ t h e specif ic place or places at which the def endant claim s to have been at t he tim e of the alleged of f ense and the nam es and addresses of the witnesses upon which the def endant intends to rely [ o n] to establish such alibi.” Id. ¶25. In the p resent case, the r ecord reveals that W alker execute d h i s s w o r n af f idavit on January 6, 2011. The af

f idavit was retained by counsel f o r Fontaine. On March 1, 2011, the State dem a nded written notice of Fontaine’s intent to pursue a n a libi def e nse. This triggered Fontaine’s requirem ent t o disclose his intent to use an alibi as a def ense. See Ford v. State , 862 So. 2d 554, 5 57 (¶11) (Miss. Ct. App. 2003) (“Only a f ter the prosecuting a ttorney m akes

a written dem and is the d ef endant then requ ired to provide a written notice of his intent to of f er a def ense of alibi.”). However, on October 2 6, 2011, seven day s prior to trial, Fontaine

5 I n h is a f

f id av it, Walk er sw o re: “M ich ael F o n tain e w as n o t in th e m o b ile h o me lo cated in th e F o rrest G ard en s M o b ile H o m e P ark at 2 0 L y n n R ay R o ad , P etal, M S o n Ju n e 2 2 , 2 0 1 0 w h en th e alleg e d crim e w as co m m itted

. . . . I w as th e o n ly p erso n th ere.” 1 1f

iled his notice of intent to u se W alker’s af f idavit. This i s c learly af

ter the 1 0

- d a y n o t i c e requirem ent of R

ule 9.05, and theref

ore the ci r c u i t c o u r t did not abuse its discretion in f inding that Fontaine’s notice of intent to use W alker’s af f idavit was untim ely

. ¶26. T h e t r i a l j u d g e a l s o excluded W alker’s af f idavit b ecause it was pure h e a r s a y . Fontaine asserts that this decision was m ade i n error b ecause W alker’s af f idavit was adm issi b l e a s a statem ent against interest and theref ore f alls into a n exception t o the rule against hearsay

pursuant to Mississippi Rule of Evidence 804(b)(3). ¶27. “Hearsay is ‘a statem ent, other than one m ade by the d eclarant while testif y ing at the trial or hearing, of

f ered in evidence to prove the truth of the m atter asserted.’” W illiams v. State , 174 So. 3d 275, 2 78 (¶17) (Miss. Ct. App. 2014) (citing M.R.E. 801(c)). H owever, a
statem ent m ay be adm i ssible if it f a l l s w i t hin one of the hearsay exceptions set f orth by Mississippi Rule of Evidence 804, which requires the declarant t o be unavailable. Id. Rule 804(a)(4) explains that a d eclarant is unavailable when he “cannot b e present or testif y at the

t rial or h earing because of death or a then-existing inf irm ity , phy sical illness, o r me n t a l illness.” M.R.E. 8 0 4(a)(4). Rule 804(b)(3) requires that the d e c l a r a n t be u navailable and def ines a “statem e nt against interest” as a statem e nt that: (A) a reasonab l e person in the declarant’s position would have m ade only if the person believed it to be true because, when m ade, i t was so contrary to the declarant’s p roprietary or pec uniary interest or had so great a tendency to inv a l i d a te the d eclarant’s claim against som e one else or to expose the declarant to civil or crim inal liability ; and (B) is supported by corroborating c i r c u m s tances that clearly indicate its trustworthiness, i f it tends to ex p o s e the declarant to crim inal liability and is of f ered to exculpate the accused.

1 2M.R.E. 804(b)(3)(A)-(B).

¶28. In the present case, both p arties agreed that Wa l k e r h ad died p rior to the pre-trial hearing and theref

o r e was unavailable pursuant to R u le 804(a)(4). H o wever, the i nquiry does

not stop there. Next, it m ust be determ ined whether the statem ent w as a g a i n s t W alker’s interest at the tim e the statem ent was m ade. This i s determ i ned “by considering the statem ent in light of the surrounding circum stances.” Hartfield v. State , 161 So. 3d 125, 136 (¶15) ( M iss. 2015). Further, “the proponent is required to show that the statem ent cl e a r l y a n d directly im plicates the declarant him self in crim inal conduct.” Id. ¶29. During the m otion in lim ine hearing, the b u r d e n w a s o n F o n t a i n e t o prove that
W a lker’s a f

f idavit, w hen executed, exposed him to crim inal l iability

. A review o f the record reveals that, while W alker’s af f i davit does place all the crim i nal liability o n him , i t also was executed af

ter he had e nt e r e d a plea of guilty f or that conduct and had been sentenced to probati o n . F u rther, testim ony also indicated that W a lker was term inally ill at the tim e he executed his af

f idavit a nd it was at the direction of Fontaine’s counsel. Theref o r e , under these circum sta n c e s , it cannot be said that W alker w ould be exposed to f urther crim inal liability at the tim e he executed his af f idavit. Moreover, even if W alker’s af f idavit was f ound to be against his p enal interest, Fontaine f ailed to show the s tatem ent’s “ corroborating circum stances

. . . indicate

. . . i ts trustworthiness.” M.R.E. 8 04(b)(3)(B). W hile the af f idavit

was s worn, it was created at the direction of Fontaine’s counsel a nd w as created af ter he had pleaded guilty and w as sentenced. The trial judge noted such c i rcum stances, com m enting: “to say it’s not self

-serving is an understatem e nt.” Theref ore, we cannot s a y the trial judge

1 3abused his discretion in f inding that W alker’s af

f idavit was pure hearsay

. III. Whether F ontaine Was Denied A Fair T rial Due To Prosecutorial Misconduct ¶30. Fontaine argues that several instances of prosecutoria l m isconduct occurred, which inf ringed upon his right t o a f air trial. Specif

ically , he t akes issue with McDaniel’s testim ony and s tatem ents that were m ade during the State’s closing argum ent. Finding t h a t neither instance rises to the level of prosecutorial m i sconduct, this issue has no m erit. ¶31. The standard o f review this Court applies to allegations of p rosecutorial m isconduct is “[ w]here prosecutorial m isconduct endangers the f a i r n e ss of a trial and t he im partial adm inistration of justice, reversal m ust f ollow.” Anderson v. State , 154 So. 3d 42, 57 (¶48) (Miss. Ct. App. 2014). Fontaine, i n his brief , asserts t hat the State engaged in prosecutorial

m isconduct because McDaniel “f a lsely t estif

ied that the State had not prom i sed her any thing in exchange f

or her t estim ony . . . [ , and] the State f aile d t o correct her f

alse testim ony .” Fontaine asserts that d

u ring cross-exam ination, McDaniel adm itted that the State prom ised

to r ecom m end h er probation i n exchange f or her testim ony against Fontaine. However, a review of the record does not support this argum ent. ¶32. As m entioned above, M c D a n i e l d i d take the s tand and testif y as p art of the State’s case-in-chief

. On direct, when asked whether she had been prom ised any thing by the State of M ississippi, she responded “ [ n]o sir” and explained that she knew she was g oing to court

soon and “whatever [ her] punishm ent is, [ she’ll] take i t.” Further, on cross exam ination, she testif i ed that she did n ot know what punishm ent s h e was going to get a nd that the State did tell her that they would recom m end probation f or her. However, o n re-direct exam ination,

1 4she testif

ied that the reason she w as being honest in court was that s he w anted to tell the truth and “just get on with m y lif e.” Theref

ore, it r em ains unclear if the State prom ised McDaniel
any thing in return f

or her testim ony against F ontaine, a n d a s such we cannot say prosecutorial m isconduct occurred. ¶33. Next, Fontaine asserts that his t rial was prejudiced by the State’s im proper argum ent regarding his f

ailure to call two witnesses: Mississippi Power I nvestigator Mike McQueen and h is bail bondsm an Tony Graves. Fontaine asserts that the prosecution’s com m ents were

m ade to prejudicially etch into the m inds of the jury that the m issing witnesses would have testif i ed adversely t o F ontaine. However, like his p revio u s a llegations of prosecutorial

m isconduct, this contention lacks m erit. ¶34. In instances o f alleged prosecutorial m is c o n d u c t d u r i n g c l o s i n g a r g u m ents, the standard of review is as f o llows: “whether the natural and probable e f f e c t o f t h e im

proper argum ent is to create unjust prejudice against the accused so a s to result in a decision inf luenced by the prejudice s o created.” F ortenberry v. State , 191 So. 3 d 1245, 1251 (¶18) (Miss. Ct. App. 2015). Further, “[ c]ounsel is allowed c onsiderable latitude i n the a rgum ent of c ases.” Id. “He is not lim ited to the f acts i ntroduced into e vidence, but he m ay argue the deductions and conclusions that m ay reasonably b e drawn theref rom .” Id. ¶35. In the p resent case, the State, during closing argum ent, did im perm issibly

com m ent

on Mike McQueen, to which d ef ense counsel objected. Following this objection, the Court acknowledged that w hile McQueen was on the witness list, he never was called as a witness, and theref ore his potential testim ony was not in evidence. Accordingly , the State withdrew

1 5its statem ent and continued w ith the closing argum ent. Theref ore, the State’s m ention about
M c Q u e e n’s presence on the def ense’s witness list was withdrawn and does not rise t o t h e level of prosecutorial m isconduct. ¶36. Sim ilarly , t he prosecutor during closing argum e nts com m e nted on Fontaine’s f ailure

to call his bail bondsm an. Fontaine argues that this com m ent also was m ade to prejudice the jury into believing h is bail bondsm en would testif y against him . However, a review of the record indicates that an objection to this com m ent never w as m ade at trial. Theref ore, appellate review of this error is p rocedurally waived. See Dampier v. State , 973 S o. 2d 221, 234-36 (¶¶38-40) (Miss. 2 008) (holding argum e nt that prosecutor m a d e com m e nts that were unsupported by the e vidence was procedurally barred because def endant did n ot object); see also Ross v. State , 954 So. 2d 968, 1001 (¶71) (Miss. 2 007) (holding “ f a ilure to object to the prosecution’s statem ents in closing argum e nt constitutes a procedural bar”).
IV. Whether T he Evidence Presented At Trial Was Legally Sufficient To Support The Verdicts ¶37. F o n t a i n e c o n t e n d s that t he State’s e vidence was insuf f icient to support the guilty verdict on both counts. Specif ically he asserts t hat McDaniel’s accom plice-testim ony

was unreasonable, self

-contradictory , and su b s tantially im peached and t heref

ore was not suf f i cient to support a conviction. Further, F ontaine asserts t hat the i n f e r e n c e of his guilt f rom possession of

stolen property

was weak and insuf

f i cient to support a conviction. ¶38. W h en addressing the legal suf f iciency of e v idence, w e c o n s i d e r all evidence in the light m ost f

avorable t o t he State. Bush v. S tate , 8 95 So. 2d 8 3 6 , 8 4 3 ( ¶ 1 6 ) (Miss. 2005) (abrogated on other grou n d s b y Little v. State , 233 So. 3 d 288 (Miss. 2017)). Credible

1 6evidence consistent with guilt m ust be accepted as true. McClain v. State , 625 So. 2d 774, 778 ( Miss. 1993). The relevant inquiry is “whether, af ter viewing the evidence in the light

m ost f avorable t o the prosecution, any rational trier of f act could h a v e f

o u n d t he essential elem ents o f the c rim e bey ond a r easonable doubt.” Bush , 8 95 So. 2d at 843 (¶16). Further, “[ i]t is w ithin the d iscretion o f the jury to accept or reject testim o ny b y a witness, and the jury

m ay give consideration to a ll inf erences f lowing f rom the testim ony . ” Johnson v. State , 832 So. 2d 1263, 1265 (¶3) (Miss. Ct. App. 2002) (quotation m arks om itted). ¶39. Having reviewed the evidence in the case, we f ind that it was suf

f i cient. W e f

irst m ust
note that “the jury is the sole judge of the credibility of the witness.” Harris v
. State , 970 So. 2d 151, 156 (¶20) (Miss. 2007). Theref ore, a l t h o u gh McDaniel’s testim o ny and the testim o ny of Fontaine’s w itnesses m ay conf l ict, the jury was entitled to believe w hom ever’s story they f

ound t o b e m ost credible. McDaniel’s t estim o ny and the corroboration provided by othe r S t a t e witnesses s upplied suf f icient evidence f

or conviction on both counts. McDaniel testif

i ed that she, Fontaine, and W a lker agreed to break into the Cooley s’ trailer and t ake the property that was stored there. Further, she testif i ed that while t hey were unable

to enter through the f

ront door, W alker entered a window and let the other two in through the f ront door. McDaniel went on to testif y about how they

gathered up all the item s in a blue tarp including: rods and reels, CDs, m ovies, a Browning bow, arrows, and NASCAR stuf f and carried them to W alker’s t railer, w here th e y a l l three lived. Moreover, McDaniel testif i ed that the n ext m orning, she and Miranda gathered the stolen p roperty and placed it in various closets throughout the house.

1 7¶40. McDaniel’s v ersion of the events was consistent with the testim ony of Of f icer Varner, who i nvestigated the initial r e p ort of stolen goods. Of f icer Varner testif

ied that he was shown the window through which the perpetrators entered the trailer and tha t t h e stolen property was recovered in Fontaine’s bedroom

. H e testif ied that the stolen property included CDs, m ovies, an old Browning bow , a r r ows, rods and reels, and NASCAR stuf f

. Further, Of f icer Varner testif

ied that Fontaine stated the rods and reels belonged t o his brother Tony

. Tony , however, testif

ied that he did not give any f ishing poles to h is b rother around the day of the i ncident, and while Tony h ad sim ilar f ishing equipm ent, he did n ot recognize all of the equipm ent recovered f

rom W alker’s trailer. ¶41. In short, reasonable jurors could have reached dif f erent conclusions regarding each elem ent of

the of f enses. Theref

ore, this issue is without m erit.
V. Whether T he Jury ’ s V e r d i c t s W ere Against The Overw helm i ng Weight Of The Evidence ¶42. “A challenge to the weight of the evidence is separate and distinct f rom a challenge

to the legal suf

f iciency of t he evidence.” Thomas v
. State , 48 So. 3d 460, 469 (¶20) (Miss. 2010) (citing Fleming v. State , 7 32 So. 2d 172, 183 ( ¶ 36) (Miss. 1 999)). W hen reviewing

a denial of a m otion f

or a new trial based on an objection to the w eight of the e vidence, “we weigh the evidence i n the light m ost f a vorable to the v erdict, ‘only disturbing a verdict when it is so contrary to the o verwhelm ing w eight of the evidence that to allow it to stand would sanctio n an unconscionable injustice.’” Little v. State , 233 So. 3d 288, 292 (¶21) (Miss. 2017) (quoting L indsey v. S tate , 212 So. 3d 44, 45 (¶4) (Miss. 2017)). Theref ore,“when the evidence is conf

licting, the jury will be the sole judge of the credibility of w i tnesses and the

1 8weight and worth of their testim ony .” Id . (¶20). ¶43. Apply ing this standard here, we f ind that there was no abuse of discretion. Viewing the evidence in a l ight m ost f avorable to t he verdict, the trial court did not sanction an “unconscionable injustice.” McDaniel testif ied that Fontaine was involved in the burglary of t he Cooley s’ trailer, and the stolen item s w ere recovered in his bedroom

. Any conf licting portions of McDaniel’s t estim o n y were thoroughly presented to the j ury . The j ury resolved these conf

licts and con c l u d ed that bey ond a reasonable doubt F ontaine was guilty of both conspiracy and burglary of a nonresidential dwelling. Theref ore, this issue is without m erit. CONCLUSION ¶44. In sum m ary , Fontaine’s f ailure to prof

f er the f ull audio-recorded p oly graph interview procedurally b ars this Court f rom reviewing Fontaine’s assigned error a nd leaves this Court without the ability to review the contents. Further, the circuit judge did n ot err i n excluding
W a lker’s af

f idavit, and the alleged prosecutorial m isconduct did not result in an u nf air trial. Moreover, the evidence presented was le g a l ly suf f i cient to return guilty verdicts, and the jury ’s verdicts were not against the overwhel ming weight of the evidence. Theref ore, we af f irm t h e circuit c ourt’s denial of Fontaine’s m otion f or judgm ent notwithstanding the verdict or, in the alternate, a new trial. ¶45. AFFIRMED. LEE, C.J., AND F A IR, J . , CONCUR. BARNES AND WILSON, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P . J . , AND TINDELL, J., C O NCUR I N RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN O PINION, JOINED BY WESTBROOKS, J.; IRVING, P.J., JOINS IN PART.

1 9CARLTON, J., DISSENTING:

¶46. I r e s p e c t f

u l l y dissent f

rom the m ajority ’ s opinion. Am ong the issues he raises o n appeal, F ontaine asserts t hat the circuit court e rred by allowing t he State to introduce a twom inute excerpt f

rom h is audio-recorded poly graph i nterview while also deny i ng his request
to a dm it the rem ainder of the interview. Because I f i nd Fontaine was e ntit l e d to have the

rem ainder of his recorded statem ent about the of f enses adm i tted into evidence af ter the State introduced an excerpt o f t h e taped statem ent, I would reverse Fontaine’s convictions and

rem and t he case f

o r f urther proce e d i n gs. 6 In so f inding, I recognize that Fontaine’s poly g raph interview “m ay contain considerable m aterial which is not relevant or m aterial” and that a “trial judge has am ple power in his sound discretion to lim it the i ntroduction into evidence

. . . those portions of the recording which a re relevant and m aterial.” Sanders v. State , 237 Miss. 772, 777, 115 So. 2d 145, 147 (1959). ¶47. On June 23, 2010, Petal P olice Departm e nt Of f i cer Rick Varner responded to a call about a burglary

com plaint at a local t railer park. Upon arriving at the trailer park, Of f icer
Varner spoke with W illiam Cooley , who re p o r t ed that his trailer had been b urglarized. Although in the m idst of m oving, W illiam a n d his wif e, Kim berly Cooley , still h ad som e of their belongings in the trailer. W i lliam returned to the t railer on June 23, 2 010, to discover

6 M ississip p i p reced en t reco g n izes th at, w h ere th e S tate i n t ro d u ces o n l y p art o f a w r itin g o r reco rd ed statem en t, th e d ef en d an t is en t itled to in tro d u ce o th er related p o rtio n s th at are relev an t a n d m aterial, an d a f ailu re t o allo w th e d ef

e n d a n t to d o so can co n stitu te rev ersib le erro r. S

ee L o m a x v. S ta te , 1 9 2 S o . 3 d 9 7 5 , 9 8 9 (¶7 1 ) (M iss. 2 0 1 6 ) ( K itch en s, J., co n cu rrin g ); K

n iep v. S ta te , 5 2 5 S o . 2 d 3 8 5 , 3 9 0 -9 1 ( M iss. 1 9 8 8 ); Jo n e s v
. S ta te , 3 4 2 S o . 2 d 7 3 5 , 7 3 6 (M iss. 1 9 7 7 ); S a n d ers v. S ta te , 2 3 7 M iss. 7 7 2 , 7 7 6 -7 7 , 1 1 5 S o . 2 d 1 4 5 , 1 4 6 -4 7 (1 9 5 9 ). 2 0that several item s were m i ssing. Af t er ver i f y i n g t h at his wif

e had n ot rem oved the item s, W i lliam c o ntacted the police and reported the f ollowing item s stolen: f

ishing rods a nd reels, NASCAR collectibles, CDs, DVDs, a bow, and arrows. W illiam showed Of f icer Varner a window that the perpetrators used to enter his trailer. ¶48. Al o n g w i t h O f

f i c e r V a r n e r , P e t al Police Departm ent Investigator Ken Bullock investigated the burglary

. The o f f icers received inf

orm a tion t hat t he stolen property m ight be in another trailer in the trailer park owned by Mark W alker. W hen the police arrived at W a lker’s trailer, they f

ound W alker, his girlf

rien d A u n d rea McDaniel, and his c o-worker Fontaine s itting on the f

ront porch. At the tim e of the burglary , Fontaine, h is wif e Miranda, and their two children lived in a bedroom in W alker’s trailer. The Fontaines occupied one of the trailer’s bedroom s, and W alker and McDaniel occupied the other bedroom

. ¶49. Af ter obtaining W alker’s consent, the police s earched his trailer. Prior to the search, Of f icer V arner a sked whether there was a ny hunting or f ishing e quipm e nt or other item s in the trailer about which t he of f icers needed to know. F ontaine responded that the only f ishing equipm ent he knew of

was a child’s rod and reel he bought f o r his child. ¶50. Of f icer Varner and I nvestigator Bullock proceeded to search the trailer. The of f icers observed som e of the stolen i tem s in p lain v i e w o n W a l k e r ’s d en f loor. T hey observed additional item s reported stolen in W alker’s l iving r oom and in the bedroom occupied by the Fontaines. Af

ter entering the Fontaines’ bedroom , O f f icer Varner noticed a partially open closet door. Of

f icer V arn e r glanced inside the closet and saw two BB guns that also were reported stolen. Af

ter rem oving a m attress wedged behind the closet door, Of f icer Varner

2 1discovered several f ishing rods and reels, a Browning bow, a rrows, NASCAR m em orabilia, and a b ag containing CDs and m ovies. T he of f i cers also discovered som e stolen i t e ms in
W a lker’s bedroom

. Af

t er com pleting their search, the police took the Fontaines, W alker, and McDaniel into custody

. ¶51. Af ter reading F ontaine his constitutional rights, Of f i cer Varner placed F ontaine into the back of his patrol car. According to O f f icer Varner, w hen I n v e s t igator Bullock exited
W a lker’s t railer holding the f ishing equipm ent, Fontaine claim ed the equipm ent belonged to his brother, T ony Fontaine. At Fontaine’s trial, however, Tony testif i ed that he did not know

to whom the f

ishing equipm ent belonged. W hile stating that he owned s om e s im ilar f ishing equipm ent, Tony testif

ied t hat h e did not r ecognize all t he e quipm e nt r ecovered f rom W a lker’s trailer. Tony

also denied that he gave the f ishing equipm ent to his brother. ¶52. Af ter being taken i nto police c ustody , Fontaine prov i d e d a w r i t t en statem ent of his whereabouts on the day

of the burglary

. In t he pretrial statem ent, F ontaine said that he got hom e f rom work around 3:33 p.m . and t ook a bath. He claim ed that he heard a noise and saw W a lker toting a “basket of s om ething[ .]” F o n t a i n e t hen wrote that he returned to his bedroom and slept until his daughter returned f rom her f r iend’s house. Fontaine next stated that he got up around 4:30 a.m . the f ollowing day

to go to work. ¶53. O n May 16, 2011, a grand jury indicted Fontaine as a habitual of f ender of burgl a r y of a nonresidential dwelling and conspiracy to com m it burglary of a nonresidential dwelling. Fontaine’s trial was set f

or Novem ber 2, 2011. Several day s bef ore his trial, Fontaine f

iled

a notice of intent to use an af f idavit f rom W alker, w ho had d ied. In his af f idavit executed

2 2o n J a n u a r y 6, 2011, W alker denied that Fontaine was present when the burglary o ccurre d

.

Instead, W alker claim ed that h e was the only person at the Cooley s’ trailer. The State f iled

a m otion in lim ine and sought to prevent Fontaine f rom i n t r o ducing W alker’s af f idavit at trial. F ollowing a hearing, the circuit c ourt f ound the a f

f i davit was hearsay and self -serving and had been untim ely disclosed. The circuit court theref ore granted the State’s m otion to exclude the af

f idavit at trial. ¶54. At Fontaine’s trial, McDaniel testif ied f o r t he State and said that she helped W a l ker

a n d F o ntaine burglarize the C ooley s’ trailer. McDaniel stated that W alker entered th e Cooley s’ trailer through a back w i n dow and then opened a door f or her and Fontaine. McDaniel testif

ied that s he helped W a l k e r a n d Fontaine gather item s f rom the Cooley s’ trailer into a blue t ote bag and transport the stolen item s back to W alker’s trailer. According

to McDaniel, the s tolen i tem s i ncluded DVDs, a Dale Earnhardt plaque, f ishing e q uipm ent,

a b ow, and arrows. McDaniel f urther testif

ied that the next m o rning she and Fontaine’s wif e Miranda hid the stolen item s in the bedroom closets of W alker’s trailer. ¶55. During testim o ny

given by a poly g rapher nam ed David Clay ton, the State m oved to introduce int o e v i d e n c e a t w o - m i nute s egm ent of an interview between C lay ton and Fontaine. Prior to trial, the def

ense retained Clay

ton to exam ine Fontaine. 7 The def ense objected to the introduction of the two-m inute interview excerpt on the ground that the c ircuit c ourt should adm it the rem ainder of Fontaine’s statem ent about the of f enses into evidence instead of just

a short e xcerpt. W ithout providing a basis f o r i ts ruling, the circui t c o u r t overruled the

7 N o m en tio n w as m ad e b ef o re t h e j u ry ab o u t C lay t o n ’ s p ro f

e s s i o n o r h is ad m in istratio n o f th e p o ly g rap h ex am in atio n o n F o n tain e. 2 3def

ense’s objection and allowed the State to adm it the interview clip. ¶56. During the audio-recorded excerpt, Fontaine told Clay ton his m ovem ents on the day of the burglary

. W hile speaking wi t h C l a y t o n , Fontaine stated h is wif e was interested in renting the Cooley s’ trailer. As a result, Fontaine said he went to look a t t he trailer on the day o f the burglary with W alker and McDaniel. Fontaine claim ed that they only looked inside the trailer windows. Fontaine then said that he awoke later t hat night a nd saw W alker returning with a big blue bag. The next day , Fontaine s aid that W alker m entioned he had a signed D ale Ernhardt picture. Fontaine also claim ed during the interview that h e overheard part of a phone conversation in which W alker and McDaniel d iscussed “putting som ething

som ewhere[ .]” ¶57. The jury also heard t estim ony f rom K im berly , the co-owner o f the b urglarized trailer. Kim berly testif

ied that, while sitting in f

ront of Fontaine at h is pretrial hearing, she overheard

a conversation between F ontaine and his bondsm a n . Kim b erly tes t i f

i e d that Fontaine told his bondsm an that M cDaniel a llegedly had called t he Cooley s and received p e r mi s s ion to
enter their trailer. Fontaine also purportedly told t he bondsm an that he entered the Cooley s’ trailer w ith his wif

e, W alker, and McDaniel, and then the f our of the m t r a nsported the Cooley s’ stolen property to W a l k e r ’ s trailer. Kim berly f urther testif

ied t hat Fontaine had asked his bondsm a n if Fontaine could apologize to the Cooley s. Kim berly stated that, upon hearing these com m ents, she reported them to the p olice. She also testif ied that neither she

nor her husband ever g ave the Fontaines, W a lker, or McDaniel perm ission to enter t he trailer. ¶58. During the def

ense’s c ase-in-chief

, Fontaine’s wif

e, Miranda, testif

ied a b out the day

2 4of the burglary

. M i r anda stated that, af ter taking m edicine f

or a m igraine, she f

ell asleep around 1:45 p.m . and did not awake until the next day

. Miranda d e n i e d s e e i n g a ny of the Cooley s’ s tolen property in W alker’s trailer either prior to or af ter the tim e she awoke, and she denied participating in the burglary

. Miranda stated that the bedroom her f am ily rented in W alker’s trailer had two closets. Although the Fontaines used one o f the c l osets, Miranda testif i ed t he other closet was of f lim its b ecause W alker stored h is m other’s possessions there. ¶59. Fontaine also tes t i f i e d o n his own behalf and d enied participating in the burglary

. Fontaine stated t hat on the evening of the burglary , he was walking his daughter o ver to her f riend’s house to s pend the night when t hey encountered W alker a nd M cDaniel. According

to F ont a ine, McDaniel pointed out the Cooley s’ trailer a s the one his wif e wanted to rent. Fontaine testif

i ed that he brief

ly walked over to the t railer b ef ore continuing w ith his daughter. Fontaine f

urther testif

ied that, when he returned to W alke r ’ s t r a iler, McDaniel asked him how he liked the Cooley s’ trailer. W hen Fontaine answered that he had not really gotten to see the trailer y e t, M c Daniel purportedly t old h im that she would m ake som e calls

to gather inf

orm ation about the trailer. Fontaine stated that he then continued his usual nighttim e routine. ¶60. During t he night, Fontaine testif i ed that his daughte r u n e x p e c t e d l y returned hom e because she was hom esick. As he was just a bout to go back to sleep, Fontaine stated that he heard another noise and saw W alker pulling a big b lue tote bag into the trailer. The next day , Fontaine testif

ied that W alker claim ed he had a Dale E a rnhardt picture. Fontaine testif ied, however, that he knew W alker did not own such an item and t heref o re s uspected the picture

2 5was stolen. Consistent with his wif e’s testim ony , Fontaine stated that his f am ily did not use the bedroom

closet where W a lker stored his m other’s belongings. ¶61. The jury f

ound Fontaine guilty of both burglary of a no n r e s i d e n t i a l d w elling and conspiracy to com m it burglary of a nonresidenti a l dwelling. T he circuit court sentenced Fontaine to seven y e ars f

or b urglary of a nonresidential dwelling and t o a consecutive fivey ear sentence f

or conspiracy to com m it burglary of a nonresiden tial d welling. The circuit

court f urther o r dered that both sentences be served in the c u stody of t he Mississippi Departm ent of Corrections without t h e benef it o f probation, parole, o r early release. Fontaine f

iled an u n successf

ul m o tion f

or a judgm ent notwithstanding t he verdict or, in the alternative, a new trial. Aggrieved, Fontaine appeals. ¶62. On appeal, Fontaine asserts the circuit court e r red by ref using his request t o adm it his entire poly graph interview i n t o e v i d ence af ter t he State m oved t o adm it a two-m inute excerpt. Fontaine c laim s the S tate took the excerpt out of context, and h e c o n t ends “[ he] was, in f airness, entitled to present and have the jury c onsider the rem ainder of the interview under the R ule of Com

pleteness.” W e review the circuit c ourt’s adm i ssion or exclusion of evidence f or a buse of discretion. Cooper v. State , 200 So. 3d 1065, 1074 (¶32) (Miss. Ct. App. 2016).
Because I f

ind this issue dispositive, I decline to address Fontaine’s r em a i ning assignm ents of error on appeal. ¶63. Mississippi R

ule of Evidence 106 em

bodies t he com m o n-law ru l e o f c o mp l e t ion. Rule 106 states that “[ i]f a party introduces all or part of a writing or recorded statem ent, an adverse party m ay require t he i nt r o d u ction, at that tim e , of any other part – or any other

2 6writing or recorded statem ent – t hat in f ai r n e s s o ught to be considered at the sam e tim e.” “[ R]ule 106 does not n ecessarily require that when a witness is q u e s t i o n e d about a prior written or recorded statem ent that all t he rem ainder m ust be of f ered into e vidence, but only that p art which ‘ought in f airness to be considered.’” Payton v. State , 897 So. 2d 921, 945 (¶85) (Miss. 2003) (quoting W elch v. State , 566 So. 2d 680, 690 (Miss. 1990)). ¶64. The M ississippi Suprem e Court has held that “any evidence pertaining to a witness’s of f er to take a po l y g r a p h , r e f u sal to take a poly graph t est, the f act that a w itness took a poly g raph test[ ,] or the results of a poly graph test is inadm issible a t trial by the State or by the def e n se.” W eatherspoon v. State , 732 So. 2d 158, 163 (¶15) (Miss. 1999). However, our caselaw also recognizes that “even if evidence is otherwise inadm issible, o ne party can open the door to its adm i ssion.” Payton , 8 97 S o . 2 d a t 945 at ( ¶86). Furtherm ore, “[ i]t is the general rule, alm ost unanim o usly f ollowed, that where the State introduces e v i d e n c e of

statem ents m ade b y the def endant im m e diately af

ter a cr i me , [ the] def

endant is entitled to bri n g o u t t h e w hole of his statem ent.” Tigner v. S tate , 478 So. 2d 2 93, 296 (Miss. 1985) (quoting Jones v
. State , 342 So. 2d 735, 7 37 (Miss. 1977)). As our s uprem e court has explained:
In t he proof o f conf

essions, the w hole of what the accused said on the subject a t t h e tim e of m aking the conf ession s hould b e taken t ogether. T h e prosecution is entitled t o show the whole statem ent, or if any part is om i tted, the accused is entitled t o s u pply it. It is also w e l l settled that if a conf e ssion is m ade under such circum stances as to authorize i t s adm i ssion in[ t o] e vidence, the accused is e ntitled to have t he ent i r e conversation, including any exculpatory or self

-serving declarations connected therewith, also adm itted. Sanders , 237 Miss. at 776, 115 So. 2d at 146-47 (citation om i tted).

2 7¶65. In t he present case, the State m o ved to introduce into evidence a two-m inute excerpt

about the of

f enses f r om Fontaine’s audio-recorded statem ent to C lay t on. The def

ense objected to only part of the recording b eing adm itted but f ailed t o prof

f e r t he content of the

rem ainder of Fontaine’s statem ent to Clay ton. Even s o, the record ref lects t he parties raised

no dispute that the rem a inder of F ontaine’s statem ent to Clay ton was consistent with his trial testim o ny as to the details o f what occurred during the tim e of t h e b u rglary and theref ore would be m a terial as to the veracity of Fontaine’s trial testim ony . W ithout any explanation

or stated basis f

or i ts ruling, the circuit court overruled Fontaine’s objection a t trial and allowed the State to introduce only the interview excerpt into evidence. ¶66. U p o n r e v i e w , I f

i n d the circuit court a

bused i ts discretion by ref using Fontaine’ s request to adm it the entire poly g raph interview into evidence af ter the State introduced the

two-m inute excerpt. 8 T he State’s introduction of the interview excerpt opened the door to the a d mi ssion of additional relevant or m aterial portions of t he interview t hat, in f airness, ought to have been considered. See Payton , 897 So. 2d at 945 (¶¶85-86). See also Sanders , 237 Miss. at 777, 115 So. 2d at 147 (recognizing that a recording “m ay contain considerable

m aterial w hich i s not relevant or m aterial” and t hat a “trial judge has

. . . discretion to lim it the introduction into evidence

. . . those portions of the recording which are relevant and

m aterial”). I theref

ore would reverse Fontaine’s c onvictions and rem and the case f or f urther

8 S ee K n iep , 5 2 5 S o . 2 d at 3 9 0 -9 1 ; S a n d e rs , 2 3 7 M i ss. at 7 7 6

- 7 7 , 1 1 5 S o . 2 d at 1 4 6

- 4 7

. S ee g en era lly L o m a x , 1 9 2 S o . 3 d at 9 8 9 ( ¶7 1 ) (K itch en s, J., co n cu rrin g ) (d iscu ssin g th e h o ld i n g in S

a n d ers an d th e ru l e o f co m

p leten ess); Jo n es , 3 4 2 S o . 2 d a t 7 3 6 (ack n o w led g i n g a d ef en d a n t’s rig h t to in t ro d u ce in to e v i d e n ce a d d itio n al relev an t an d m a terial p arts o f a statem en t w h ere th e o p p o s in g p arty in t ro d u ces o n ly a selected p o rtio n o f th e statem en t). 2 8p r o c e e dings c onsistent with t his opinion. A ccordingly , I respectf ully dissent f

rom t h e

m ajority ’s opinion. WESTBROOKS, J., JOINS THIS O PINION. IRVING, P.J., JOINS THIS OPINION IN PART.

2 9