Ferrill v. State

• Decision Date: 22 September 1994
• Docket Number: No. 91-KA-00767,91-KA-00767
• Citation: Ferrill v. State, 643 So.2d 501 (Miss. 1994)
• Parties: John Mark FERRILL and Roxanne Elizabeth Ferrill v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 501

643 So.2d 501

John Mark FERRILL and Roxanne Elizabeth Ferrill v. STATE of Mississippi.

No. 91-KA-00767.

Supreme Court of Mississippi.

Sept. 22, 1994.

Jimmy D. McGuire, Gulfport, for appellants.

Michael C. Moore, Atty. Gen., Wayne Snuggs, Asst. Atty. Gen., Jackson, Ellen Y. Dale, Ridgeland, for appellee.

Before DAN M. LEE, P.J., and PITTMAN and JAMES L. ROBERTS, Jr., JJ.

DAN M. LEE, Presiding Justice, for the Court:

The appellants, John Mark Ferrill and Roxanne Elizabeth Ferrill, were convicted on July 19, 1991, in the Hancock County Circuit Court for violating Miss.Code Ann. Sec. 41-29-139 (1972). We reverse, finding that the lower court failed to properly instruct the jury regarding the inconsistent testimony of an accomplice.

I.

John Mark Ferrill ("Mark") and Roxanne Elizabeth Ferrill ("Roxanne") were arrested on April 7, 1990, as the result of Larry Wall's cooperation with narcotics agents in arranging a "buy" of 1700 grams (3.6 lbs.) of marijuana. Although Mark and Roxanne were not physically present at the time that the drugs were exchanged for money, they were later arrested and indicted along with James Thomas Nobles, a/k/a Cuz, the person who delivered the marijuana to Larry Wall.

The three were indicted under Miss.Code Ann. Sec. 41-29-139(a)(1) (1972). That indictment charged that Mark, Roxanne, and James Thomas Nobles "did knowingly, wilfully, unlawfully and feloniously, sell or transfer more than one kilogram of Marijuana, a Schedule I Controlled Substance, to Larry Wall...." Arraignment was waived by Mark and R, and both entered pleas of "not guilty." James Thomas Nobles ("Cuz") also waived arraignment and entered a plea of "not guilty;" however, three (3) days before the trial in the case sub judice, Cuz changed his plea to "guilty" and later testified against Mark and Roxanne as a witness for the State.

At the conclusion of the defendants' case-in-chief, proposed jury instructions were submitted for the lower court's approval. But, several of the defendants' proposed jury instructions, including an "impeachment instruction" and an "accomplice cautionary instruction," were denied by the lower court judge over objections by defense counsel.

The jury instructions were read to the jury and immediately thereafter the jury deliberated to consider their verdict. Over three hours later the jury returned to the courtroom, having unanimously decided on a "guilty" verdict. Subsequently, the lower court judge ordered Mark and Roxanne to each: 1) serve twenty (20) years in MDOC (five years suspended, fifteen years to serve); and 2) pay a $20,000.00 fine.

Aggrieved, Mark and Roxanne appealed to this Court. Two of the issues presented by Mark and Roxanne warrant discussion. Those issues are stated as follows:

THE TRIAL COURT ERRED IN REFUSING DEFENSE INSTRUCTION A-7, A TESTIMONY IMPEACHMENT INSTRUCTION.

THE TRIAL COURT ERRED IN DENYING INSTRUCTION A-19 FOR THE DEFENDANTS, AN ACCOMPLICE CAUTIONARY INSTRUCTION.

II.

A.

The investigation of Mark and Roxanne evolved out of a Narcotics Task Force ("NTF") surveillance of another person, Larry Wall ("Wall"), a/k/a Donny Wall, on April 6, 1990. On that day, two NTF agents had followed Wall to New Orleans, Louisiana, where he purchased a pound of marijuana. Next, the agents followed Wall from New Orleans back to Hancock County, Mississippi, where NTF agents stopped Wall's vehicle, presented a search warrant, and obtained a pound of marijuana from the trunk of Wall's vehicle.

Wall told the NTF agents that he was willing to cooperate with them if they would get him out of the public's view so that "nobody would see [him] and know that [he] had been busted--arrested." Wall was transported to the NTF headquarters location, and, as a means of "cutting a deal," Wall told the NTF agents that he could purchase a large quantity of marijuana.

According to the testimony of NTF agents, Wall was desperate to cooperate with the police by setting someone up. One NTF agent also testified that Wall's brother and sister-in-law were both in trouble with the law, and Wall was trying to "work out a deal" for himself, as well as his brother and sister-in-law.

As a consequence, Wall represented that Mark and Roxanne were the people from whom he could make a large drug purchase and that their telephone number was 832-9007. The telephone number was verified by the NTF agents as listed to Mark and Roxanne, and the NTF agents set up a recorder on a telephone at their office in order to record conversations between Wall and the Ferrills. From there, two telephone conversations were recorded between Wall and the parties who answered the dialed telephone number, allegedly Mark and Roxanne.

The first telephone conversation was recorded on April 6, 1990, and the second recording was made the following morning, April 7, 1990, at 10:50 a.m. A third telephone conversation was initiated and recorded by NTF agents from Wall's residence at 11:40 a.m. on April 7, 1990. The substance of all three telephone conversations was the culmination of an agreement for the purchase, sale, and delivery of approximately four (4) pounds of marijuana.

In preparation for Wall's receipt of the marijuana, the NTF agents placed a body wire (transmitting microphone) on Wall and gave him money for the drug buy. Afterwards, Wall waited outside the front of his trailer for the drug delivery. Cuz arrived shortly thereafter, and while exchanging 1700 grams (3.6 lbs.) of marijuana for Wall's money, Cuz was arrested by the NTF agents.

Cuz had delivered the marijuana to Wall in plastic ziplock bags. However, when questioned at trial, one of the NTF agents admitted that the marijuana-filled plastic bags were not dusted for the fingerprints of Mark or Roxanne; therefore, there was no physical evidence linking Mark and Roxanne to the bags of marijuana.

B.

At the trial of Mark and Roxanne, Wall testified as a witness for the State. According to his testimony, he had known Mark and Roxanne for about one and one-half (1- 1/2) years, and he had spoken to Mark on the telephone about 50 times, while he had spoken to Roxanne on the telephone 20-25 times. One of the tapes was played for the jury, and Wall testified that he recognized the voices on the tape; that it was his voice and Mark's voice. Another tape was played thereafter. Wall identified the voices on the second tape as his and Roxanne's. The tape of the third recorded telephone conversation was played and Wall stated that he also recognized those voices as his and Roxanne's voices. Wall testified that the third tape-recording represented a telephone call placed from his house for the purpose of notifying Mark and Roxanne that he wanted to buy four (4) pounds of marijuana, that he had the money, and that they should deliver the marijuana to his house.

On cross-examination, Wall confirmed that, at the time of the trial, his brother, Richard Wall, and his sister-in-law, Hilary Wall, were both in trouble with the law concerning drug offenses.

C.

Cuz also testified for the State. Other than the taped conversations with Wall, his testimony is all that linked Mark and Roxanne to the drug transaction. However, his testimony was tainted because of a contradictory pre-trial statement which he had earlier given under oath.

According to Cuz's testimony, he had known Mark and Roxanne for 11-12 years. He stated that, on April 7, 1990, he was at Mark and Roxanne's house; that on the morning of April 7, Mark asked him to transport four (4) pounds of marijuana from the Ferrill's house to Wall's house and to sell it to Wall for $875.00 per pound. He stated that, prior to Mark's request, a telephone call had been received at the Ferrill's house, and he overheard Roxanne say that "he wanted four of them and Mark said, 'alright, I got them ready.' "

When asked about it on cross-examination, Cuz responded that he remembered making a prior inconsistent statement in the defense counsel's office while under oath. He did not deny making the prior inconsistent statement, responding to the question at trial as follows:

Q. Did you make the following statement:

"That I am freely making--that I am making this statement freely, voluntarily and without threats, promises, coercions, promises of reward or out of fear for my safety. That I neither received marijuana from John Mark Ferrill or Roxanne Elizabeth Ferrill on the 6th or 7th day of April, 1990, or at any time before or after that date nor did I see them on the above mentioned dates. To my knowledge they have no involvement whatsoever with the case for which I am charged."

Did you sign an affidavit under oath to that effect?

A. Yes, sir, I did.

(emphasis added).

On redirect, Cuz testified that he made the aforementioned statement because he was confused at the time and didn't know what to do. He claimed that he was nervous and confused.

D.

The defense presented several witnesses who testified that the voices heard on the tape-recordings were not those of either Mark or Roxanne. Mark's grandfather stated that he had heard Mark's voice on the telephone many times, as well as Roxanne's voice. He testified that he had previously listened to the tape-recorded conversations while they were replayed at the sheriff's department. Although he stated that the voices on the tapes were not those of Mark and Roxanne, he recognized two voices on the tapes as being voices of Richard Wall and Hilary Wall. Further, according to Mark's grandfather, at the time that the tapes were played at the sheriff's department, Cuz was also there, and Cuz indicated that he recognized the voices on the tapes as those of Richard Wall, Hilary Wall, and Larry Wall, but not Mark or Roxanne Ferrill.

Roxanne's mother also testified. Of apparent importance to the defense, she stated that her telephone number was not the same as the telephone number of Mark and Roxanne. Her telephone number was "not" 832-9007, it was 868-3909. She testified that Mark and...