Franklin v. State, 92-KA-00973-SCT
| Decision Date | 20 June 1996 |
| Docket Number | No. 92-KA-00973-SCT,92-KA-00973-SCT |
| Citation | 676 So.2d 287 |
| Parties | Roderick FRANKLIN and Glen Dale Jackson v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Stan Perkins, Greenville, for appellant.
Michael C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
En Banc.
This case involves the slaying of a 61-year-old homeless man, which occurred in a field behind the Frost Top Restaurant in Greenville, Mississippi on Sunday, January 19, 1992. In connection with this killing, 13-year-old Roderick Franklin and 17-year-old special education student Glen Dale Jackson were indicted in the Washington County Circuit Court for murder and conspiracy to commit murder. Franklin and Jackson were acquitted of the murder charges, but were convicted of the crime of conspiracy to commit murder. They were sentenced to twenty years in prison, with five years suspended. On appeal, Franklin and Jackson raise one issue:
WHETHER THE TRIAL COURT ERRED BY REFUSING THE APPELLANTS'
REQUESTS FOR A DIRECTED VERDICT AND/OR JUDGMENT
On Sunday afternoon, January 19, 1992, Roderick Franklin, Glen Dale Jackson, and three other teenagers decided to "mess with" a homeless man. The five youngsters, threw rocks at the victim and kicked him for five to seven minutes. During this time, Michael Moering, a high school senior and the oldest boy in the group, left. Moering returned a few minutes later with a gun; he shot the victim. Moering then pointed the gun at Franklin and another boy, because "he knew [they were] gon' to tell it." The subsequent autopsy revealed that the victim's death was caused by a gunshot wound to the back of his head.
WHETHER THE TRIAL COURT ERRED BY REFUSING THE APPELLANTS'
REQUESTS FOR A DIRECTED VERDICT AND/OR JUDGMENT
Requests for a directed verdict and motions JNOV implicate the sufficiency of the evidence. The standard of review for the legal sufficiency of the evidence is well-settled:
[W]e must, with respect to each element of the offense, consider all of the evidence--not just the evidence which supports the case for the prosecution--in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.
Wetz v. State, 503 So.2d 803, 808 (Miss.1987) (citations omitted).
The appellants argue that, although they may have conspired to commit assault, they did not conspire to commit murder. The law on conspiracy provides that:
For there to be a conspiracy, "there must be recognition on the part of the conspirators that they are entering into a common plan and knowingly intend to further its common purpose." The conspiracy agreement need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts, and conduct of the alleged conspirators. Furthermore, the existence of a conspiracy, and a defendant's membership in it, may be proved entirely by circumstantial evidence.
Nixon v. State, 533 So.2d 1078, 1092 (Miss.1987) (citations omitted); Mitchell v. State, 572 So.2d 865, 867 (Miss.1990).
" 'By its very nature, conspiracy is a joint or group offense requiring a concert of free will.' " Flanagan v. State, 605 So.2d 753, 757 (Miss.1992) (quoting Moore v. State, 290 So.2d 603, 604 (Miss.1974)). Furthermore, conspiracy requires the "union of the minds" of the conspirators. Id.
The only evidence of a conspiracy in this case is the fact that Franklin and Jackson went with the other boys to "mess with" the victim. 1 This is insufficient evidence of conspiracy to commit murder. See Thomas v. State, 591 So.2d 837, 839 (Miss.1991). There is no evidence to indicate that either Franklin or Jackson recognized that, by "messing with" the victim, he had entered into a common plan to commit murder or that he knowingly intended to further the common purpose of that plan. See Johnson v. State, 642 So.2d 924, 928 (Miss.1994). There is no evidence of a "union of the minds" between the boy who pulled the trigger and the appellants. Accordingly, the judgment of conviction by the trial court is reversed and rendered in favor of the appellants. Roderick Franklin and Glen Dale Jackson are discharged on these charges of conspiracy to commit murder.
REVERSED AND RENDERED. RODERICK FRANKLIN AND GLEN DALE JACKSON ARE DISCHARGED.
SMITH, J., dissents with separate written Opinion joined by JAMES L. ROBERTS, Jr. and MILLS, JJ.
MILLS, J., dissents with separate written Opinion joined by JAMES L. ROBERTS, Jr. and SMITH, JJ.
PITTMAN, J., not participating.
On January 19, 1992, five teenagers in Greenville decided to go "mess with" Thomas Payton, an elderly homeless man, who lived in a vacant field behind the Frost Top Restaurant. Their messing with Payton consisted of throwing rocks, pieces of brick, and one large brick which struck the defenseless Payton, who immediately fell to the ground. Four of the teens continued the attack on Payton by stoning and kicking Payton while one of their number, Michael Moering, momentarily left the scene and returned with a gun. While Payton lay face down on the ground, Moering pointed the gun at the back of Payton's head and pulled the trigger, but the gun did not fire. Moering killed Payton on the second attempt with a shot to the back of the head. Eddie Jefferson, a State's witness, who had pled guilty to manslaughter, testified that he "had a feeling" and "knew in a certain way" that Moering was going to get a gun.
The majority, because of supposed lack of evidence of conspiracy, would reverse and render the conviction of these defendants by a Washington County jury and would set aside their sentence of twenty years imprisonment, with five years suspended. It is my view that the "messing with," as illustrated by the facts of this case, which unquestionably constituted a vicious, brutal, and sadistic assault upon an elderly, homeless and defenseless victim is a question properly left for the jury to determine the meaning and intent of these five teens in carrying out their ultimately fatal assault upon Payton. I therefore disagree and am compelled to dissent.
The majority maintains that there is no direct evidence of Franklin's and Jackson's intent to commit conspiracy to murder Payton. Direct evidence is not required. This Court, in Willis v. State, 518 So.2d 667, (Miss.1988), in considering intent stated:
[I]n addressing the question of wilful intent ... this Court has said:
Intent to do an act or commit a crime is also a question of fact to be gleaned by the jury from the facts shown in each case. The intent to commit a crime or to do an act by a free agent can be determined only by the act itself, surrounding circumstances, and expressions made by the act [sic] with reference to his intent. Shanklin v. State, 290 So.2d 625, 627 (Miss.1974).
Too, criminal intent may be proved by circumstantial evidence. Stinson v. State, 375 So.2d 235 (Miss.1979). Intent may be determined from the acts of the accused and his conduct and inferences of guilt may be fairly deducible from all the circumstances. Newburn v. State 205 So.2d 260 (Miss.1967). (emphasis added).
Willis, 518 So.2d at 669 quoting Shive v. State, 507 So.2d 898, 900 (Miss.1987).
The majority's cited authority, Nixon v. State, 533 So.2d 1078 (Miss.1987), recognizes a defendant's membership in a conspiracy may be proven by entirely circumstantial evidence. In Nixon, citing Gray v. State, 487 So.2d 1304, 1306 (Miss.1986), this Court held Nixon, 533 So.2d at 1092. (citations omitted) (emphasis added).
The majority stakes its opinion squarely upon, "The only evidence of a conspiracy in this case is the fact that Franklin and Jackson went with the other boys to 'mess with' the victim." Majority opinion at 289. The majority finds the record lacking of any testimony by any of the conspirators that they intended and planned to kill Payton. In the process, the majority totally ignores this Court's pronouncements on this subject in Gray, Nixon, Willis, Shanklin and Newburn.
The majority accepts the defendant's argument that, although they may have conspired to commit assault, they did not conspire to commit...
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