McDonald v. State, 54903

Decision Date25 July 1984
Docket NumberNo. 54903,54903
Citation454 So.2d 488
PartiesTerry Wayne McDONALD v. STATE of Mississippi.
CourtMississippi Supreme Court

Richard Hamilton, Fielding L. Wright, Wright & Hamilton, Pascagoula, for appellant.

Bill Allain, Atty. Gen., by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.

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

HAWKINS, Justice, for the Court:

Terry Wayne McDonald appeals from his conviction of conspiracy to possess and distribute marijuana and sentence of five years and $5,000.00 fine. He was one of seven indicted for this crime.

Numerous errors are assigned on his appeal, but we address only one. Because we are convinced the State never made a jury issue on McDonald's being a co-conspirator, we reverse and render.

FACTS

On Friday, November 21, 1980, Terry Wayne McDonald was 26 years old, married, the father of two children, and a deputy sheriff investigator with the sheriff's office of Jackson County. (He had worked for 2 1/2 years with that department, beginning as a jailer.) He had received an honorable discharge from the United States Army, after serving in the Green Berets. He had no sisters, and only one brother, Mack McDonald.

Because there are two McDonalds, we will refer to each by his first name.

Mack got Terry into one pack of trouble.

This case involves several individuals dealing in a large quantity of marijuana, and we will begin as the matter was related by the state's star witness at trial: Dan Westphal.

Westphal and four others learned of a shrimp boat of marijuana off the coast, and the five of them agreed to unload the marijuana, sell it and share equally in the proceeds. The other four in this agreement were: Kenneth and Graylon Hester, Tom Gruen and Roy Paine.

Two to three days before the arrival of the marijuana off the coast, Westphal contacted Mack about locating a place to store the marijuana. There was no set amount Mack was to be paid. According to Westphal, "It could be part of the loot, part of the marijuana in payment. It wasn't important to either one of us to settle on a straight amount."

Westphal, the Hesters and Paine made the trip out in a shrimp boat called "Rendezvous", to the West end of Petit Bois Island, and removed about one-half the marijuana cargo from the other boat, loading it onto the Rendezvous. They docked at a local boat repair yard, and unloaded about one-half of the marijuana from the Rendezvous. Gruen was on shore. They had a load of over two tons.

The marijuana taken off the boat was loaded into a white Chevrolet closed van truck. Westphal, Gruen and Graylon Hester went in the truck to meet Mack, who then escorted them to the residence of Tom Hinton in Jackson County. All of the group wound up at Hinton's residence, where the marijuana was unloaded into his hothouse.

Hinton's involvement in the matter began with a telephone call he received on Friday morning, November 21. It was Mack. Hinton testified:

And he asked me would I help him with something. He didn't really imply what it was. And when he got to my house, there was a big truck following him. It was about 4:00 in the morning. And he walked up to my door and was talking to me. I asked him what the big truck was, and he told me. I told him he could not leave it at my place. He told me not to kick up too much fuss, that the guys in the truck had a gun, or guns, and that I needed to try to help him if I could some way or another. So we bickered back and forth, and this guy named Westphal steps up; he was riding with Mack at the time. He made offers of what he would do for me if I would help them out, and this, that and the other. [Emphasis added]

Hinton permitted the party to unload the marijuana into his hothouse, but after their departure both he and his wife were quite uncomfortable. He telephoned Mack and told him the marijuana would have to be moved.

Hinton and the McDonalds had been lifelong friends, in public school together. The McDonalds also knew another individual from school days, Ray Stewart, but Terry was not on such good terms with him, having once arrested Stewart for auto theft.

Over in the late afternoon, about dark, of the day the marijuana was placed in Hinton's hothouse, Mack telephoned his brother Terry to come over to his house, and from his voice Terry detected some urgency.

As Terry drove into Mack's driveway, Ray Stewart drove in front of the house on the highway. Terry was inquiring the reason Mack wanted him, and was told there was no time, that it was getting dark, and to get into his truck and follow him to Hinton's house. Thereupon, the three of them, each driving his own pickup, drove to Hinton's house.

Terry testified Well, they pulled down by the greenhouse and I pulled right in behind them. I got out of my truck. And Mack and Tom were standing there at the door of the greenhouse, just on the other side of the opening of the door. I walked up to them and asked them what they wanted. About that time I walked up and the door was open, so I looked in the greenhouse. There was a pile of marijuana in there.

* * *

I told them a bunch. I threatened them. I cussed them out. I was outraged by the whole thing; for them to take me down there, you know, and get me involved in it. I threatened them; I told them I was going to the law and have them busted, and everything else. I told them if they ever fooled with anything, they was going to get busted. I said they was going to get rid of it right then and there.

Mack told Terry that was what Stewart was for, and Stewart responded he wanted it.

Terry helped Stewart and Mack haul the marijuana from Hinton's house over to a shop behind Stewart's house. Stewart lived about four miles from the Hintons, and each pickup truck made two trips with marijuana, taking about 45 minutes altogether.

Asked what he thought when he saw the marijuana, Terry responded:

I thought they were in a lot of trouble and I wanted them to get rid of what they had. That's all I could think about. They were in over their heads in something that was dangerous. It was powerful people they were fooling with. People can very easily get killed over two tons of marijuana. And I realized that. What I had on my mind was they were going to get rid of it and they weren't going to be involved in it or exposed to it no longer. And if they was, then I would bust them.

Asked why he had not arrested them then, Terry responded:

Uh--, that would just be hard to do; arrest my only brother I had and a lifelong friend of mine. I felt I could get them to understand and leave the stuff alone and not get involved in this kind of stuff. I know I made a mistake; I know I should have. Maybe I should have done something--I don't know. But it was right then a split-second decision making deal. And a lot of that didn't really cross my mind, except the part that they were in danger and they were fooling with something they had no business messing with.

Stewart was promised $2,500 by Mack to store the marijuana. Stewart never received any money. Mack never received any money, and Hinton never received any money. Other than what has been related, Terry had nothing to do with the marijuana. He did not know Westphal, either of the Hesters, Gruen or Paine.

Westphal and the others later removed the marijuana from Stewart's shop over a period of time and sold it off in lots. Westphal made over $45,000. Some of the marijuana went to Alabama. Westphal was arrested February 19, 1981, with a large quantity of marijuana and $10,000 to $11,000 cash.

The only persons involved in the marijuana who testified were Westphal, Hinton, Stewart and Terry. There was no dispute in any of the testimony, except Stewart testified that Mack offered him $2,500 to store the marijuana, that they were at Mack's house at the time, and Terry was present. Terry vehemently disputed this, and Terry's version is borne out by Hinton, who was a state witness, and who said Terry was upset and angry with them over getting involved at all.

Terry's total involvement was the 45 minutes it took for him to make two trips with marijuana in his pickup from Hinton's house to Stewart's on the night of November 21, 1980.

Terry had no dealings at any time with Westphal, the Hesters, Gruen or Paine. He knew nothing about them.

Following Westphal's arrest, there was an investigation, and Terry was asked about a large quantity of marijuana in the north end of the county. He said he had been informed by a confidential informant that it had belonged to a man named Dan Westphal in Gautier. He had concluded that the marijuana was Westphal's.

On October 12, 1982, Gruen, the Hesters, Hinton, one Larry Holmes, Terry and Mack were indicted by the Jackson County Grand Jury charging that between November 1, 1980, and December 31, 1981, they did:

... feloniously conspire, combine, confederate and agree together and with each other and with diverse and other persons whose names are to the Grand Jurors unknown, to commit a crime against the State of Mississippi; namely, to possess a controlled substance, to-wit: over one (1) kilogram of Marijuana, with intent to distribute, ...

Westphal had been indicted for another offense, and although he was obviously the ring leader and main beneficiary, for his testimony the State agreed not to indict him, and granted him immunity for his part in this crime. Stewart was never indicted. Paine was never indicted.

All of the individuals indicted with the exception of Terry pleaded guilty.

The circuit judge overruled a motion for a directed verdict of acquittal at the conclusion of the State's case.

LAW

Numerous errors have been assigned on this appeal. We only address the question of whether there was a jury issue made that Terry engaged in a conspiracy under Miss.Code Ann. Sec. 97-1-1 (1972).

The State chose not to charge him with being an accessory after the fact, or with possession of marijuana. We are thus faced with the narrow question...

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