Flanagan v. State, 07-KA-59615

• Decision Date: 29 July 1992
• Docket Number: No. 07-KA-59615,07-KA-59615
• Citation: 605 So.2d 753
• Parties: James M. FLANAGAN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 753

605 So.2d 753

James M. FLANAGAN v. STATE of Mississippi.

No. 07-KA-59615.

Supreme Court of Mississippi.

July 29, 1992.

Anselm J. McLaurin, McLaurin & McLaurin, Brandon, for appellant.

Michael C. Moore, Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and PITTMAN and BANKS, JJ.

BANKS, Justice, for the Court:

I

Here we are called upon to consider a conviction based on the uncorroborated testimony of an alleged accomplice. We are urged to adopt a rule making such convictions invalid per se. We decline the invitation. Nevertheless, we find the instant case appropriate for the application of our rule that uncorroborated testimony of an alleged accomplice which is contradictory, improbable and substantially impeached will not support a conviction. Applying that principle, we reverse and render.

II

This case is before this Court on appeal from the Circuit Court of Rankin County, where on August 16, 1988, James "Bubba" Flanagan (Flanagan) was convicted by a jury for conspiracy to manufacture marijuana. The April 1988 indictment listed the offense as having occurred "on or about" June 13, 1988. Before trial, the State moved to amend the indictment to reflect the correct date, and the court entered an order amending the indictment to reflect the date of the alleged occurrence as June 13, 1987. A second amendment to the indictment was granted during trial, after the state had rested its case and Flanagan had made a motion for directed verdict. The trial court, over Flanagan's objection, allowed the State to amend the indictment changing the date from June 13, 1987 to June 12, 1987.

Flanagan was sentenced to serve a term of three years in the custody of the Mississippi Department of Corrections, with two years and six months of that sentence suspended, a fine of two thousand ($2,000) dollars, and five years probation. After Flanagan's Motion for a New Trial was denied, he appealed to this Court for review, asserting an insufficiency of the evidence and error in allowing the trial amendment to the indictment. Finding the issue of the sufficiency of the evidence dispositive, we pretermit any discussion of the amendment issue.

III

Sometime in 1986, an unknown individual advised John Edwards, then investigator for the Rankin County Sheriff's Department, that there was a possibility of marijuana growing on his property. After the warning, Edwards solicited the help of the narcotics bureau to fly over and check his property. There was nothing found at this time. In 1987, Edwards was again told that marijuana was on his property. On June 10, 1987, he called the narcotics bureau and once more requested that they check his property. As the previous investigation, this one proved fruitless as well.

Clay Flanagan (Clay), the defendant's son, returned home from a drug treatment unit on June 10, 1987, and requested that Edwards come to his father's house. Accompanied by investigator, Don Bray, Edwards went to the Flanagan home. There, Clay told Edwards that he was drug free and wanted to turn over some marijuana that he had buried a long time ago. Additionally, Clay admitted to Edwards that he had planted marijuana on Edward's property in 1986. Edwards then told the defendant to check the property to ensure that there were not any drugs left. Edwards stated that he did not suspect Flanagan of illegal conduct at this point. The next day Edwards saw Flanagan and inquired if he had checked the property for marijuana. Flanagan answered in the negative, but assured Edwards that he was on his way to take care of it. Flanagan testified that he borrowed a horse and rode to the spot where Edwards told him to look, but he did not see any marijuana.

Herbert Lee Duckworth, also known as and at times herein referred to as "Cowboy", discovered that an investigation was being conducted in the area involving marijuana on some property. On June 12, 1987, he went to the home of John Edwards, where he informed Edwards that Flanagan solicited his help in planting marijuana on Edwards' property. The next day, Duckworth escorted Edwards and other law enforcement agents to the location in the woods where he had planted the marijuana.

Edwards testified that he rarely traveled on that part of his property and had Duckworth not approached him, he would have never found the marijuana, since the stalks were planted in thick plots in the woods. The officers found approximately one hundred, freshly cultivated, marijuana plants. Subsequently, Flanagan and Duckworth were charged with conspiracy to manufacture marijuana.

At trial Flanagan vigorously protested his innocence. The problem, he asserts, is that, he was burdened with a son, Clay, who had a propensity for marijuana and cocaine and little respect for his father. For years, Clay grew marijuana on a portion of his father's one-hundred or so acres of land. Each time Flanagan discovered the substance on his property, he destroyed it. As any concerned parent, not meaning to obstruct the law, yet seeking to protect his son, Flanagan did not contact the authorities. After growing tired of the constant problem with Clay, Flanagan spoke to his ex-wife, Clay's mother, who in turn committed their son to a chemical dependency unit in Jackson, Mississippi.

Flanagan testified that he had given Duckworth, his occasional employee, a key to a gate on his property to allow Duckworth to cut paperwood. At trial, Flanagan recalled that one particular late spring day in 1987, he and a Mr. Andrews were planting watermelon when they noticed Cowboy on Flanagan's property. After Flanagan inquired of Cowboy's presence, Cowboy informed Flanagan that he was there to chop dead trees. Both Flanagan and Andrews testified that they never heard anything to indicate that Duckworth was in fact chopping trees on the property that day.

Sometime after that incident, within three or four days of June 10, 1987, Flanagan discovered about three stalks of marijuana on his property, which were surrounded by fresh foot tracks. Flanagan stated that he knew the tracks were not made by his son, since he was in a rehabilitation center. Flanagan assumed the tracks to be Cowboy's, because he had seen him in that area several times. When Flanagan saw Cowboy, he firmly told him to remove the stalks, if they were his, or else Flanagan would have someone remove them. According to Flanagan, the confrontation sparked hostility from Cowboy. Three days later, Cowboy informed Flanagan that he had taken care of the marijuana because 'they' thought that the marijuana was Flanagan's and his. Flanagan's pertinent testimony was:

"About three or four days later, I was coming out of Spaceway, a little ole gas station there in Pelahatchie, as I was going in Cowboy was coming out, and I said, Cowboy did you take care of that matter that I told you to. And he said, 'yes sir Mr. Bubba, I did.' Said, 'don't you worry about it. Said, they ain't going to bother it.' I said, what are you talking about. He said, they think it is mine and yours see.' "

Cowboy never told Flanagan to whom he was referring. Flanagan then told Cowboy that Cowboy needed to obtain help from an attorney.

Duckworth had worked for Edwards, as well as Flanagan, and testified that he approached Edwards about the marijuana because he knew that Edwards and Flanagan were good friends and felt that if he told Edwards that the marijuana was both his and Flanagan's, Edwards would give him a chance to pull it, "and that would be it." When questioned about the alleged agreement between him and Flanagan, Cowboy stated that he and Flanagan never made an agreement about the marijuana.

As with all things, there are two sides to every story. Cowboy's testimony is likened to the grade school game entitled "Rumors" or "Pass Along", where one player passes on a statement to another person, who in turn, passes the statement to another, until the statement reaches the originator, at which point, the statement has been so severely altered that it has lost its originality. Here, however, Duckworth was the sole player in this game. Each time he attempted to give his version of the story, the facts changed.

Initially, Cowboy told the jury that Flanagan paid him to grow marijuana. He denied Flanagan's version of their discussions of marijuana. He testified that he and Flanagan engaged in two conversations, one around November 1986 when Flanagan asked him if he knew anything about marijuana to which Duckworth replied in the negative. The other conversation allegedly took place in January 1987 when Flanagan again allegedly asked the same question, which Duckworth again replied in the negative. However, on cross his testimony evinced that he had knowledge surrounding the method of "setting out and planting" marijuana.

The facts adduced at trial established that this was only the beginning of several contradictory statements by Duckworth, leading to substantial impeachment. Duckworth testified that in April 1987, he and Flanagan decided to plant marijuana. According to Duckworth, Flanagan supplied him with marijuana seeds to plant, which he allegedly planted in two places, receiving two to three hundred dollars every other week from Flanagan as the plants grew. However, he later testified that he planted marijuana in three different places and that Flanagan never paid him any money to help grow marijuana. The pertinent testimony is:

Q. Now do you have any evidence that you can put before this jury that Bubba Flanagan handed you fifteen hundred dollars to help you grow marijuana?

A. I wasn't getting it to help grow no marijuana.

Q. Well why were you getting money from him?

A. To loan out.

Q. That is the money that you have been loaning out?

A. That's right.

Q. And he wasn't paying you to help him grow marijuana?

A. Right.

Q. Now you are sitting here today telling this jury that you didn't know anything about planting any marijuana, is that right?

A. That's right.

On cross-examination, Cowboy...