Mitchell v. State

• Decision Date: 05 December 1990
• Docket Number: No. 07-KA-59265,07-KA-59265
• Citation: 572 So.2d 865
• Parties: George MITCHELL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 865

572 So.2d 865

George MITCHELL v. STATE of Mississippi.

No. 07-KA-59265.

Supreme Court of Mississippi.

Dec. 5, 1990.

Samuel H. Wilkins, Jackson, for appellant.

Mike C. Moore, Atty. Gen., Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and ROBERTSON and BLASS, JJ.

ROBERTSON, Justice, for the Court:

I.

Once again George Mitchell has been put to trial for conspiracy to murder his paramour's husband, and once again the jury has found him guilty. And, once again, Mitchell appeals, but this time the issues are different and the outcome is different, as this time we affirm.

II.

The facts of this Warren County soap opera are summarized in Mitchell v. State, 495 So.2d 5 (Miss.1986) (Mitchell I ), and we will note them here in but abbreviated form.

For some time prior to July of 1983, George Mitchell had been involved with Joyce Wells, and under circumstances, the exact details of which are not in important dispute, the two agreed that Wells' husband, James Earl Wells, should be done away with. Mitchell engaged the services of Clardy (Bootsie) Ellis to have the job done. Things went awry when Ellis proved less than loyal and informed Warren County Sheriff Paul Barrett of the plot.

The plan called for the hit man to do his dirty deed at approximately 7:00 a.m. on the morning of July 22, 1983, at which time James Earl Wells was expected to arrive to turn on the air conditioning at his wife's beauty shop. Joyce Wells arrived at 8:00 a.m., expecting to find her husband dead and to feign shock, but, instead, Sheriff Barrett was waiting and placed her under arrest. Mitchell was arrested later that morning.

Initially, Mitchell and Wells were tried together and each was convicted of conspiracy to commit murder. On September 24, 1986, this Court reversed in Mitchell I and remanded for a new trial. On remand, the Circuit Court severed the cases for trial and, by reason of publicity which had attended the original trial, ordered venue changed to Coahoma County whereupon Mitchell stood trial alone. On October 13, 1987, the jury convicted Mitchell, and the Circuit Court ordered him committed to the custody of the Mississippi Department of Corrections for a term of four years. Miss.Code Ann. Sec. 97-1-1(h) (1972).

III.

Mitchell argues that the evidence adduced at trial was insufficient as a matter of law to establish his guilt of conspiracy to commit murder. He claims that the Circuit Court erred when it denied his post-trial motion for judgment of acquittal notwithstanding the verdict which, of course, was but a renewal of his pre-verdict request for a peremptory instruction of not guilty.

Our scope of review is as limited as it is familiar. See Jones v. State, 567 So.2d 1189, 1191 (Miss.1990); Lane v. State, 562 So.2d 1235, 1236-37 (Miss.1990); Brown v. State, 556 So.2d 338, 340 (Miss.1990); Stringer v. State, 548 So.2d 125, 128-29 (Miss.1989). For example, in Wetz v. State, 503 So.2d 803 (Miss.1987), we stated

Our concern here is whether the evidence in the record is sufficient to sustain a finding adverse to ... [Mitchell] on each element of the offense of [conspiracy to commit] murder. [Citation omitted] In the present context we 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. [Citations omitted] The credible evidence which is consistent with guilt must be accepted as true. [Citation omitted] The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. [Citations omitted] Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. [Citations omitted] 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 fairminded jurors could only find the accused not guilty. [Citations omitted]

Wetz, 503 So.2d at 808.

Turning to the offense charged, when two or more persons combine or agree to commit a crime, they offend our law of conspiracy. Miss.Code Ann. Sec. 97-1-1 (1972); see also, Rose v. State, 556 So.2d 728, 735 (Miss.1990); Griffin v. State, 480 So.2d 1124, 1126 (Miss.1985). A conspiracy is a completed offense, requiring no proof of an overt act in pursuance thereof. Ford v. State, 546 So.2d 686, 688 (Miss.1989). An individual acting alone and without a partner may not conspire, at least, not in our law's eye. James v. State, 481 So.2d 805, 808 (Miss.1985). Each conspirator must know that he is entering a common plan and intend to further its common purpose. Ford v. State, 546 So.2d 686, 688 (Miss.1989); Taylor v. State, 536 So.2d 1326, 1328 (Miss.1988); McCray v. State, 486 So.2d 1247, 1251 (Miss.1986). If there be an agreement, knowledge of that agreement follows. McCray, 486 So.2d at 1251. The agreement need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts, and conduct of the alleged conspirators. Rose, 556 So.2d at 735; McCray, 486 So.2d at 1251; Davis v. State, 485 So.2d 1055, 1058 (Miss.1986); Griffin, 480 So.2d at 1126.

Mitchell denies there was a conspiracy. He argues that the prosecution failed to present evidence that jurors might lawfully believe proved beyond a reasonable doubt that he and Wells ever agreed to commit a crime or were even acquainted. Mitchell argues that the only evidence tending toward a conspiracy were statements he allegedly made to Ellis and Sheriff Barrett referring to a woman, "old lady," and "bitch." Mitchell seems to suggest that there was a lack of seriousness in his intentions.

Of course, the prosecution's principal evidence establishing Mitchell's guilt is that provided through Clardy Ellis' former testimony, to be noted below. Added to this are Sheriff Barrett's statements that, when he arrested Mitchell on Eagle Lake Road on the morning of July 22, 1983, he asked Mitchell how a family man like him (Mitchell) could get himself involved in such a crime, to which Mitchell replied, "Paul (the sheriff), this woman has pestered me for over a year to do this. I guess I better call a lawyer." Mitchell also stated, "Paul, when you found out I was going to do this, why didn't you tell me and I wouldn't be in this predicament." These statements pack a substantial, incriminating punch.

Beyond this we have in the record the tape recording of Mitchell's conversations with Ellis and Joyce Wells' appearance at the time suggested by the plan to find the "body." In this state of the evidence, it is our best judgment that reasonable jurors could have found that Mitchell had committed the offense of conspiracy to commit murder and have found this fact beyond a reasonable doubt. Ford, 546 So.2d at 688-89; Taylor, 536 So.2d at 1329. On this point, we may only affirm.

IV.

A.

Clardy Ellis was a critical player but (for months leading up to and) at the time of (re)trial he was nowhere to be found. His testimony was by far the most damning the prosecution presented. If on the present appeal Mitchell stresses a point more than any other, it is his complaint that the prosecution was allowed to proceed upon Ellis' transcribed testimony from the first trial, rather than requiring that Ellis be again produced as a live witness. Mitchell argues that this procedure offended rights secured to him by the Sixth and Fourteenth Amendments to the Constitution of the United States, by Article III, Section 26 of the Constitution of the State of Mississippi, and by Rule 802, Miss.R.Ev.--the hearsay rule.

There is no question that the form in which Ellis' testimony was presented brought it within our definition of hearsay. The testimony was presented courtesy of the court reporter in Mitchell I "to prove the truth of the matter asserted." Rule 801(c), Miss.R.Ev. Equally certain is that Mitchell enjoyed no direct confrontation with Ellis at his (re)trial. Cf. Idaho v. Wright, 497 U.S. ----, 110 S.Ct. 3139, 3145-52, 111 L.Ed.2d 638, 651-59 (1990).

The facts are important. It appears that Ellis left Vicksburg after the first trial and has not been seen in Mississippi since. Deputy Sheriff Otho Jones testified that two years prior to (re)trial, Ellis had been located in Cleveland, Ohio. The prosecution had a subpoena issued for Ellis. Armed with this subpoena, Deputy Jones contacted the F.B.I. office in Jackson, the police department in Cleveland, Ohio, and the welfare department in Cleveland. These efforts produced a nibble but no fish. Ellis called Jones about three weeks prior to (re)trial, saying he had no address or phone number where he could be reached as he was living in the streets in and out of Cleveland. Deputy Jones reported that Ellis proclaimed he would never return to Mississippi and that, in Jones' opinion, Ellis was hiding. Jones admitted that Ellis had not been put under bond or placed in custody after declaring his farewell. Deputy Jones said he did not send anyone to Cleveland as he would not know where to look.

Deputy Sheriff Raymond Ellis, one of four siblings to Ellis, testified that he had not seen Clardy Ellis since 1984 and had no idea whether Ellis was still alive. Further Deputy Ellis knew of no other relatives or close friends to Ellis who knew Ellis' address. Deputy Ellis maintained that he had unsuccessfully looked for Ellis for over a year and knew of no way to get in touch with him. He acknowledged relatives in Cleveland but did not know how to get in touch with them. Deputy Ellis testified that prior to the first trial he found Clardy Ellis in Cleveland, but that Ellis had met him and Deputy Jones at a motel. Deputy Ellis had also asked people about Ellis' whereabouts to no avail.

Clardy Ellis' nephew, Mose Hearron, another employee of the Warren County Sheriff Department, also said that he had not seen Ellis since the first trial. Hearron...