Flanagin v. State, No. 55620

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtBefore PATTERSON; PATTERSON
Citation473 So.2d 482
PartiesPaul W. FLANAGIN v. STATE of Mississippi.
Docket NumberNo. 55620
Decision Date24 July 1985

Page 482

473 So.2d 482
Paul W. FLANAGIN
v.
STATE of Mississippi.
No. 55620.
Supreme Court of Mississippi.
July 24, 1985.

Page 483

Rex K. Jones, Hattiesburg, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C.J., and HAWKINS and ANDERSON, JJ.

PATTERSON, Chief Justice, for the Court:

Paul W. Flanagin was convicted in the Circuit Court of Lamar County and sentenced to life imprisonment for the murder of his ex-wife, Sharon Herzner Flanagin.

On May 25, 1982, at approximately 4:25 p.m., Paul Flanagin phoned the Lamar County Sheriff's Department and informed them that his wife had been shot. Three deputies were then dispatched to Flanagin's house.

Medic Sheila Hall arrived at the scene at approximately 4:35. Flanagin showed her to the room where his wife was lying on a bed with a bullet wound to the chest. According to Hall, Flanagin was distraught at the time. He was arrested shortly afterward by the Lamar County Sheriff.

Flanagin testified Sharon had resumed living with him after their November 1981 divorce and that they had planned to remarry in June 1982. On the day of Sharon's death, the couple had driven home from Florida, where they had spent a four day vacation. According to Flanagin, Sharon had became despondent on the way home upon consuming several beers and speculating about her future as a sufferer of multiple sclerosis. 1 Flanagin testified,

Of my own knowledge ... she had multiple sclerosis, and ... she had lost most of her eyesight in her left eye, and

Page 484

she was going blind in her right eye ... She kept telling me that she would never be anything but a burden to me and the kids; it was just one illness right after another.

Upon the couple's arrival home, Sharon went into their bedroom and sat cross legged on the bed with her back to the headboard. At this point she was disconsolate. Her husband tried briefly to console her. He testified he went back to the car to retrieve his wife's cigarettes and upon his return to the bedroom, found her sitting in bed with a gun in her lap. She was crying and threatening to kill herself.

Flanagin sat down on the bed about a foot and a half from his wife, took the gun out of her lap and placed it in his own. Flanagin described what happened next:

She looked at me real weird, and she dove at me and dove at the gun, and she was trying to grab the gun away from me, and I went over backwards into the bed. I was sitting there, and I fell over backwards, and I was looking up at the ceiling--when I went over backwards, that gun went off.

State's witnesses cast the incident in a much different light. J.B. Sykes testified Sharon called his Indianola, Mississippi office collect on May 25 at 4:00. Sykes testified regarding the conversation:

Well, she said, "J.B., this is Sharon. Is Larry there," to be exact, and I said, "No, he's not, Sharon. What's the matter?" And she was crying or snubbing like, and she said, "I'm in trouble." That was her words, and I said, "Well, get a hold of yourself." She was kind of hysterical ... and I said, "Sharon, what's the matter? ..." and there was a slight four or five second pause there ... and she said, "I need to talk to Larry." I said, "Well, I'm sorry, can I help you?" About that time she said, "J.B., my husband is going to kill me," and I heard a gun go off or what sounded to be a gun, and the phone hit a metal--it sounded like the phone fell and hit a metal of some sort.

As Sharon was talking Sykes heard a male voice in the background accusing Sharon in indelicate language of infidelity.

Mason Sistrunk, an investigator for the Lamar County District Attorney's office, testified he had determined a long distance call was placed about 4:00 o'clock on May 25 from a location within the state to Sykes' office in Indianola. Sistrunk's personal investigation of the Flanagin house revealed a bedside telephone which could be reached by a person lying on the bed in a prone position.

Dr. James E. Williams, III, who performed the autopsy, testified the wound was not a contact wound and that in his opinion the angle of the bullet was slightly downward.

Forensic Scientist John Michael Allen testified neutron tests had been inconclusive, making it indeterminable whether Paul and/or Sharon Flanagin had discharged the firearm at the time in question.

Flanagin first contends the court committed reversible error in admitting testimony from Investigator Mason Sistrunk concerning the record of the collect telephone call from the deceased to J.B. Sykes.

On direct examination Sistrunk testified he had investigated Flanagin's telephone records and had determined a long distance call was placed from the Flanagin residence on the date of the incident. The defense objected on the ground the State had not laid the proper predicate for this evidence. The court overruled the objection, permitting Sistrunk to testify he had examined the telephone records pursuant to a subpoena duces tecum and had ascertained a phone call had been placed. The court ruled further that the recipient of the call, J.B. Sykes, would not be allowed to base his testimony on Sistrunk's evidence; rather, Sykes would be required to independently identify Mrs. Flanagin's voice unless the telephone records were introduced.

Observing the State made no effort to introduce the telephone records and offered no explanation for their absence, Flanagin

Page 485

now argues the admission of Sistrunk's testimony violated the best evidence rule.

In a similar case a witness, in testifying to establish the first element of...

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14 practice notes
  • Moffett v. State, No. 2011–DR–00028–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • April 24, 2014
    ...“The [Harrelson ] opinion simply recognized the unfairness of subjecting a defendant to an objective ‘grieving test.’ Flanagin v. State, 473 So.2d 482, 487 (Miss.1985).” “This is still a good rule of law.” Kolb v. State, 542 So.2d 265, 269 (Miss.1989) (citations omitted).Davis, 684 So.2d at......
  • Moore v. State, NO. 2016–KA–01507–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • April 19, 2018
    ...the state in circumstantial evidence cases ." Fisher v. State , 481 So.2d 203, 214 (1985) (emphasis added) (citing Flanagin v. State , 473 So.2d 482, 485 (Miss. 1985) ; Hester v. State , 463 So.2d 1087, 1093–94 (Miss. 1985) ). This notion is manifestly wrong.¶ 41. In truth, there is just on......
  • Jones v. State, No. DP-60
    • United States
    • United States State Supreme Court of Mississippi
    • January 28, 1987
    ...the nature of the State's evidence is circumstantial, the sort of instruction requested by Keys here must be given. Flanagin v. State, 473 So.2d 482, 485 (Miss.1985); Hester v. State, 463 So.2d 1087 (Miss.1985); Flemmons v. State, 419 So.2d 1034, 1036 (Miss.1982); Westbrook v. State, 202 Mi......
  • Montgomery v. State, No. 56743
    • United States
    • United States State Supreme Court of Mississippi
    • August 19, 1987
    ...keep in mind the arguably stricter burden of proof placed upon the State in circumstantial evidence cases. See, e.g., Flanagin v. State, 473 So.2d 482, 485 (Miss.1985); Hester v. State, 463 So.2d 1087, 1093, 1094 (1985). [Fisher v. State, 481 So.2d 203, 214 (Miss.1985) The circumstances in ......
  • Request a trial to view additional results
14 cases
  • Moffett v. State, No. 2011–DR–00028–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • April 24, 2014
    ...“The [Harrelson ] opinion simply recognized the unfairness of subjecting a defendant to an objective ‘grieving test.’ Flanagin v. State, 473 So.2d 482, 487 (Miss.1985).” “This is still a good rule of law.” Kolb v. State, 542 So.2d 265, 269 (Miss.1989) (citations omitted).Davis, 684 So.2d at......
  • Moore v. State, NO. 2016–KA–01507–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • April 19, 2018
    ...the state in circumstantial evidence cases ." Fisher v. State , 481 So.2d 203, 214 (1985) (emphasis added) (citing Flanagin v. State , 473 So.2d 482, 485 (Miss. 1985) ; Hester v. State , 463 So.2d 1087, 1093–94 (Miss. 1985) ). This notion is manifestly wrong.¶ 41. In truth, there is just on......
  • Jones v. State, No. DP-60
    • United States
    • United States State Supreme Court of Mississippi
    • January 28, 1987
    ...the nature of the State's evidence is circumstantial, the sort of instruction requested by Keys here must be given. Flanagin v. State, 473 So.2d 482, 485 (Miss.1985); Hester v. State, 463 So.2d 1087 (Miss.1985); Flemmons v. State, 419 So.2d 1034, 1036 (Miss.1982); Westbrook v. State, 202 Mi......
  • Montgomery v. State, No. 56743
    • United States
    • United States State Supreme Court of Mississippi
    • August 19, 1987
    ...keep in mind the arguably stricter burden of proof placed upon the State in circumstantial evidence cases. See, e.g., Flanagin v. State, 473 So.2d 482, 485 (Miss.1985); Hester v. State, 463 So.2d 1087, 1093, 1094 (1985). [Fisher v. State, 481 So.2d 203, 214 (Miss.1985) The circumstances in ......
  • Request a trial to view additional results

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