Farris v. State, No. 98-KA-00600-SCT.

Decision Date08 June 2000
Docket NumberNo. 98-KA-00600-SCT.
Citation764 So.2d 411
PartiesIke FARRIS a/k/a Isaac Naser Farris a/k/a `Ike' v. STATE of Mississippi.
CourtMississippi Supreme Court

Herbert H. Klein, Hattiesburg, Attorney for Appellant.

Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.

BEFORE PRATHER, C.J., BANKS, P.J., AND MILLS, J.

MILLS, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Appellant Ike Farris, a Hattiesburg attorney, was charged with conspiring to defraud the conservatorship of Jack Diamond, a Picayune businessman who was physically incapacitated after suffering several strokes. Charged with Farris were Scott Morgan, a Hattiesburg policeman, and Gregory Alston, another lawyer in Hattiesburg. The indictment further named Charles Morgan (Scott's father), and former Chancellor William Robert Taylor, both deceased, as unindicted co-conspirators.

¶ 2. Severed indictments mandated separate jury trials for each defendant. A Harrison County jury granted Gregory Alston a complete acquittal. Scott Morgan was convicted of conspiracy, but on appeal this Court reversed and remanded his case for a new trial based on the admission of prejudicial hearsay testimony and evidence of Chancellor Taylor's suicide. Morgan v. State, 741 So.2d 246 (Miss.1999).

¶ 3. Ike Farris was tried before a Forrest County jury, convicted of conspiracy and sentenced to five years in the custody of the Mississippi Department of Corrections with two years suspended on two years unsupervised probation and three years to serve, payment of a $5,000 fine and all court costs, and disbarment from the further practice of law in the State of Mississippi as provided by Miss.Code Ann. § 73-3-41(1995). On appeal, he raises eleven issues.

ISSUES
I. WHETHER THE INDICTMENT SUFFICIENTLY INFORMED IKE FARRIS OF THE CONSPIRACY CHARGE AGAINST HIM.
II. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE FARRIS MOTION TO DISMISS BASED UPON COLLATERAL ESTOPPEL AND LACK OF JURISDICTION.
III. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT A CONTINUANCE UNTIL THE CHANCERY COURT RULED ON THE FINAL ACCOUNTING BY FARRIS.
IV. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE FARRIS MOTION TO DISMISS BASED UPON IMMUNITY.
V. WHETHER THE TRIAL COURT ERRED IN RULING THAT THE CONSPIRACY AS CHARGED IN THE INDICTMENT WAS PROVEN BY A PREPONDERANCE OF THE EVIDENCE, THEREBY RESULTING IN THE ADMISSION OF EVIDENCE FROM CO-CONSPIRATORS.
VI. WHETHER THE TRIAL COURT ERRED IN ADMITTING HEARSAY TESTIMONY.
VII. WHETHER THE TRIAL COURT ERRED IN ADMITTING SUMMARY EVIDENCE PRESENTED BY THE STATE.
VIII. WHETHER THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF PAYMENTS MADE PRIOR TO THE ISSUANCE OF THE CHANCERY COURT ORDER.
IX. WHETHER THE TRIAL COURT ERRED BY DENYING THE FARRIS MOTION TO RECUSE THE DISTRICT ATTORNEY.
X. WHETHER THE TRIAL COURT ERRED IN RULING THAT THERE WAS NO EVIDENCE OF SELECTIVE PROSECUTION.
XI. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING THE FARRIS MOTION FOR A DIRECTED VERDICT, A JNOV OR A NEW TRIAL.

FACTS

¶ 4. Jack Diamond owned Allied Heirlooms, a specialty dry cleaning business located in Picayune, Mississippi. After Diamond was incapacitated by a series of strokes, Chancellor William Robert Taylor appointed Susan Smith Williams, Diamond's daughter and sole heir at law, as conservator of his personal and business interests. In March of 1994, Jack Parsons, an attorney who had represented Diamond prior to his strokes, filed a motion seeking the appointment of a guardian ad litem, alleging that various people, including Susan Smith Williams, were stealing from her father and his business. Chancellor Taylor subsequently appointed Robert Jackson, Jr. as guardian ad litem. Jackson determined that the Diamond estate had been mismanaged, and upon his motion, Carley Cooper, a Picayune businessman, was appointed by Chancellor Taylor as the new conservator for the Diamond estate, replacing Diamond's daughter.

¶ 5. In April of 1994, an entity known as Manhattan Square Limited entered the fray. Sam Farris, a Hattiesburg attorney and brother of the appellant, Ike Farris, sought to purchase Allied Heirlooms on behalf of Manhattan. Manhattan was comprised of two individuals, a Picayune businessman named Gene Combs, and a New Orleans lawyer named Don Theriot. In August of 1994 Sam Farris, on behalf of Manhattan, filed a petition before Chancellor Taylor to purchase Allied Heirlooms for $700,000. No action was taken on this petition. In the late summer or early fall of 1995, Sam Farris, informed Brian O'Rourke, Manhattan's financial consultant, that O'Rourke could be appointed chief financial officer for Allied Heirlooms by simply sending Chancellor Taylor a resume and attending a hearing.

¶ 6. On December 8, 1994, attorney Jay Jernigan was appointed by Chancellor Taylor to replace Robert Jackson as guardian ad litem. Jernigan was instructed by the Chancellor to determine whether Diamond would recover from the stroke. Chancellor Taylor also ordered Jernigan to hire Greg Anderson of Home CPA Group in Hattiesburg to appraise Allied Heirlooms. Jernigan also filed suit against Diamond's relatives, alleging mismanagement of his assets, and against certain banks for allowing Diamond's money to be spent without a court order. Jernigan was serving as guardian ad litem in June of 1995, when Chancellor Taylor, in the Pearl River County Courthouse, first asked Jernigan to give him a kickback by padding his bills to the Diamond estate for his services as guardian ad litem. Jernigan testified that the Chancellor approached him several more times with further requests that he pad his bills and retain some of the excess funds for the Chancellor.

¶ 7. Having accumulated nearly $700,000 in cash by the fall of 1995, Allied Heirlooms was temporarily restored to financial security under conservator Carley Cooper's direction. Greg Anderson's valuation of Allied Heirlooms, dated in September of 1995, showed that the business was worth almost $3,000,000. Jernigan, as guardian ad litem, then learned that Cooper had entered into a contract to buy Allied Heirlooms from Susan Smith Williams, Diamond's daughter and sole heir. Recognizing an apparent conflict of interest, Jernigan filed a petition to have Cooper removed as conservator.

¶ 8. On October 9, 1995, a hearing was held on the petition to remove Cooper as conservator. Following the hearing, Chancellor Taylor made new appointments: Jay Jernigan was named as the new conservator of the Diamond estate; Bryan O'Rourke, the Manhattan financial consultant working with Sam Farris, was appointed chief financial officer of Allied Heirlooms; and Todd Bradley, a Hattiesburg businessman, was named plant manager for the business. Pursuant to a motion filed by Sam Farris on behalf of Manhattan, the chancellor ordered O'Rourke to assist Jernigan in auditing Allied Heirlooms and maintaining monthly financial records. Chancellor Taylor, at the same hearing, and acting on the motion of Jernigan, entered an order requiring the signatures of both Jernigan and O'Rourke for any withdrawals from Allied Heirlooms. A few days later, on October 12, 1995, Chancellor Taylor appointed Ike Farris to replace Jernigan as guardian ad litem.

¶ 9. In late November of 1995, Chancellor Taylor solicited another kickback from Jernigan in the Forrest County Chancery Court Building. This entreaty troubled Jernigan and he was also concerned about O'Rourke's appointment as chief financial officer of Allied Heirlooms and his dual representation of Manhattan Limited as a potential business purchaser. Jernigan approached Chancellor Taylor regarding these matters and was told by the Chancellor "to deal with it." Unable to approve the apparent developing pattern of illegality, Jernigan resigned as conservator on December 15, 1995.

¶ 10. Following Jernigan's resignation, Chancellor Taylor tapped Charlie Morgan, who suffered from severe emphysema and was wheel-chair bound, as the new conservator for both the Diamond estate and Allied Heirlooms. Greg Alston, Chancellor Taylor's neighbor, was appointed attorney for the conservatorship. Although Brian O'Rourke continued in his court-appointed capacity as chief financial officer of Allied Heirlooms, Chancellor Taylor terminated O'Rourke's authority to write checks for the business in December of 1995 ___ only two months after O'Rourke's initial appointment.

¶ 11. On January 16, 1996, Chancellor Taylor ordered and conducted an in camera hearing involving Allied Heirlooms and the Diamond conservatorship. Present were Greg Anderson, C.P.A.; Ike Farris, Diamond's guardian ad litem; Charlie Morgan, Diamond's conservator; Greg Alston, attorney for the conservatorship; Bryan O'Rourke, the financial analyst for Manhattan Limited and court-appointed chief financial officer of Allied; and Todd Bradley, the interim general manager for Allied. Ike Farris issued a subpoena duces tecum commanding Anderson to produce the business valuation records and his financial report. On direct examination he repeatedly asked specific questions about the financial position of Allied and whether anyone else had seen Anderson's report. Anderson continually answered in the negative and then gave the materials to Chancellor Taylor. The packet containing the records and report was never opened or reviewed by Ike Farris or any other participant at the hearing. No one at the hearing asked the actual value of the business, but Ike Farris asked numerous questions as to what financial information the report contained. Ike Farris attempted to ask about the health of Jack Diamond, but he was interrupted by Chancellor Taylor and Diamond's health status was never subsequently discussed on the record.

¶ 12. Evidence in the criminal trial adduced that during the January 16, 1996, in camera hearing, Todd Bradley, the court-appointed general manager of Allied, informed Chancellor Taylor of his concerns regarding the business's lack of...

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