Malone v. State, 56053

• Decision Date: 26 February 1986
• Docket Number: No. 56053,56053
• Parties: Frank Talbert MALONE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 360

486 So.2d 360

Frank Talbert MALONE v. STATE of Mississippi.

No. 56053.

Supreme Court of Mississippi.

Feb. 26, 1986.

Rehearing Denied April 23, 1986.

Jayne L. Buttross, Joseph A. Runnels, Jr., Gulfport, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Leyser Q. Morris, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This appeal is by the mastermind of a Gulf Coast diamond heist from his conviction as an accessory before the fact of armed robbery. Here he questions the trial judge's instruction of the jury regarding the elements of the offense charged, the prosecutor's innuendo that he is guilty by association with others, and the weight of the evidence. We find no error on three points tendered and affirm.

II.

A.

At about 9:30 p.m. on the evening of January 16, 1982, Virginia Guilbeau returned to her home on Fire Tower Road in Hancock County, Mississippi, checked her mail, drove up to her door. She loaded her arms with purchases made that day as well as her purse and began to walk to her front door. Guilbeau was carrying a pistol at the time, as was her custom. As Guilbeau put the key in her front door, someone came up behind her and started beating her with a "slapjack". The assailant, a lone woman, directed Guilbeau to "give me all of your diamonds" and to "lay down and don't move". Guilbeau laid down and pulled her head up under her car, "thinking that if they shot me anywhere, I would survive, other than my head". The assailant took from Guilbeau thirteen diamond rings as well as a diamond watch and $3,000 in cash. One of the rings contained a 4.91 carat diamond with the estimated value of $65,000.

After her assailant left, Guilbeau got in her car and drove to her sister's house and made three calls--to Jim Conley whom she thought her friend, to her lawyer, and to the sheriff's department. Guilbeau had known Conley for over ten years as he had worked with her husband in the contracting business. Guilbeau and her husband were separated (he was in the Philipines and the two were having marital difficulties), and Jim Conley had been a frequent visitor to Guilbeau's home. Guilbeau had extensive security devices at her house including burglar bars, an electric gate, and an alarm system which had to be turned off within seconds of unlocking the front door--all of which Conley was aware of. Conley was also aware of Guilbeau's practice of carrying a gun in her hand when traveling from her car to her front door. Guilbeau had talked to Conley on the morning of January 16, 1982, the day of the robbery and he was aware of her plans for the day--where she was going and when she was going there and when she intended to return home.

Marilyn Page was arrested in Jackson, Texas, the following month. Page admitted that she was Virginia Guilbeau's assailant and implicated Frank Talbert Malone, Defendant below and Appellant here, in the jewelry robbery. The facts subsequently developed through Page include:

--That in January of 1982 she was living in the Cherie Apartments in Pascagoula.

--That she had known Frank Malone since February of 1979.

--That Frank Malone called her on the evening of January 15, 1982, at home and asked her to come over to his house in Gulfport as early as possible on the next day.

-- That she and Robert Stewart went to Frank Malone's house about 9:30 on the morning of January 16th, the day of the robbery.

--That she, Stewart and Frank Malone went to Sam Buchanan's trailer.

--That she had never met Sam Buchanan before, nor Jim Conley who was also there.

--That she and Jim Conley left the trailer and went to the Security Building to plan a robbery of Virginia Guilbeau in the Security Building.

--That she refused to go through with the robbery at the Security Building at which point Conley took her to Guilbeau's home and then back to Buchanan's trailer.

--That later that night Sam Buchanan drove her back to Virginia Guilbeau's for the purpose of getting her diamonds; Sam Buchanan dropped her off and waited down the road until the job was done at which time they returned to Frank Malone's house.

--That she turned the diamonds over to Frank Malone and that Frank and Sam went through the contents of the purse.

--That also at Frank Malone's house was a jeweler by the name of Dale and a girl named Betty.

--That Frank Malone gave her five $100 bills for bringing the diamonds to him.

--That Frank Malone and Dale Bissett began breaking down the diamonds, i.e. taking them out of their settings.

--That that was the last time that she saw Frank Malone.

Marilyn Page emphasized Malone had given her the money himself after the robbery on the night of January 16, and that he had not acted at the direction of Sam Buchanan. She further emphasized that Malone and Dale Bissett were the ones breaking down the pilfered diamonds that night and that Dale was already at Malone's house, that no phone call was made to get him there. Frank Malone was the first one to ask her when she came in the door if she got the 4.9 carat diamond, and Bissett asked if she was sure she got the right one because they both knew there was also a phony one.

Robert Stewart had been living with Marilyn Page. He went with her to see Frank Malone on January 16, 1982. After picking up Malone, Stewart and Page drove to Sam Buchanan's house. Malone, Conley, Buchanan and Page retired to the back room leaving Stewart alone in the living room with an older man whose name he did not know. Stewart left Buchanan's with Conley and Page and was directed to drive them by the Security Building in Gulfport. The three then drove past "this woman's house" and Stewart was asked to participate in the crime. He waited at the house until Page and Buchanan returned and watched Buchanan attempt to burn the victim's purse in the yard with his cutting torch.

Frank Malone stated that his occupation was buying and selling jewelry and guns. ¹ Malone claimed that he first met Jim Conley through Sam Buchanan. Malone was extremely interested in getting to know Conley because he supposedly knew the location of a shipwreck with old Spanish gold coins on it. Malone said he contacted Marilyn Page for Buchanan because he had her unlisted number and was not supposed to give it to anyone. He said that he took Marilyn Page over to Sam's on the morning in question because he wanted to talk to him and he had a car at Sam's that Sam was supposed to be fixing. He was only at Buchanan's for five minutes at the most, and no discussion of a robbery took place during that time.

According to Malone, Buchanan called him about 11:00 that night and said that he had a diamond he wanted to show him. After inquiry he decided that the diamond was out of his league and called Dale Bissett to come to his house because Sam was going to bring the stone there. Bissett upon looking at the diamond stated that he didn't have that kind of money but he knew a jeweler in Wisconsin who could afford it. Buchanan said that he had to have the money that night, and they began breaking the stones down (taking them out of their settings) and Bissett handed Buchanan $1500 of which $500 Sam peeled off and handed to Malone motioning to Marilyn. Malone gave the $500 to Marilyn. At that point everyone left. Malone stated that none of the jewelry was left in his possession and he did not know that the jewelry represented any type of robbery.

B.

This criminal prosecution was commenced on July 11, 1982, when the Grand Jury of Hancock County returned an indictment charging Frank Talbert Malone and four others ² with the armed robbery of Virginia Guilbeau. After a severance was granted the matter was called for trial in Circuit Court on January 24, 1983. In due course thereafter, the jury returned a verdict finding Malone guilty of armed robbery. As the jury was unable to agree upon punishment, the Circuit Court sentenced Malone to the custody of the Mississippi Department of Corrections for a term of eleven (11) years. See Miss.Code Ann. Sec. 97-3-79 (Supp.1985).

Thereafter, Malone filed a motion for judgment of acquittal notwithstanding the verdict or, in the alternative, for a new trial. On February 4, 1983, this motion was overruled and denied. Malone now appeals to this Court.

III.

The crime for which Malone has been indicted, tried and convicted is armed robbery; that is, the felonious taking of the property of another from that person and against her will by violence or by putting such person in fear of immediate injury. Miss.Code Ann. Sec. 97-3-79 (Supp.1985). The evidence reflects that Marilyn Page's wielding of the slapjack and wresting of the diamonds from Ms. Guilbeau easily falls within and establishes all of the elements of the crime of armed robbery.

Malone, however, was not present at the time of the armed robbery. His culpability is as an accessory before the fact. Under our law, Miss.Code Ann. Sec. 97-1-3 (1972):

Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not.

What renders one an accessory before the fact is well settled. In Crawford v. State, 133 Miss. 147, 97 So. 534 (1923), this Court ruled that to aid and abet in the commission of a felony, one must "do something that will incite, encourage, or assist the actual perpetrator in the commission of the crime." 133 Miss. at 151. (Emphasis added.) See James v. State, 248 Miss. 777, 780, 160 So.2d 695, 696 (1964) (An accessory before the fact must actually advise and procure commission of the crime, encourage, aid and abet its commission, help plan the crime with the understanding he will benefit from it.); Shedd v. State, 228 Miss. 381, 386, 87 So.2d 898, 900 (1956) (Aiding and abetting involves a community of unlawful purposes at the time of the act and...