Morgan v. State, 98-KA-00251-SCT.

• Decision Date: 19 August 1999
• Docket Number: No. 98-KA-00251-SCT.,98-KA-00251-SCT.
• Citation: 741 So.2d 246
• Parties: Scott MORGAN a/k/a Glenn Scott Morgan v. STATE of Mississippi.
• Court: Mississippi Supreme Court

741 So.2d 246

Scott MORGAN a/k/a Glenn Scott Morgan v. STATE of Mississippi.

No. 98-KA-00251-SCT.

Supreme Court of Mississippi.

August 19, 1999.

Cynthia Hewes Speetjens, Thomas E. Royals, Jackson, Attorneys for Appellant.

Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

BEFORE PRATHER, C.J., WALLER AND COBB, JJ.

WALLER, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Five men were named in a Forrest County conspiracy indictment. Appellant Scott Morgan, a Hattiesburg policeman, and two lawyers were charged with conspiring to defraud the conservatorship of Jack Diamond, a Picayune businessman who had become incapacitated as a result of a series of strokes. The indictment also named Charles Morgan (Appellant's father) and former Chancellor William Robert Taylor, both deceased, as unindicted co-conspirators. After a severance and a change of venue to Harrison County, a jury trial was held before Special Circuit Judge William F. Coleman. Morgan was convicted of conspiracy and was sentenced to five years in the custody of the Mississippi Department of Corrections with two years suspended, three years to serve, and five years of supervised probation. Morgan raises seven issues on appeal:

I. The indictment was insufficient to inform Morgan of the crime with which he was charged.

II. The trial court erred in granting Jury Instruction 13.

III. It was error to allow the prosecution to cross-examine Morgan on allegations that he had been accused of police brutality.

IV. The trial court erred in refusing to grant a continuance.

V. The trial court erred in failing to grant a JNOV because the evidence was not sufficient to support a conviction for conspiracy.

VI. The trial court erred in admitting out-of-court statements made by alleged co-conspirators.

VII. The trial court erred in allowing the jury to hear evidence of Judge Taylor's suicide.

STATEMENT OF FACTS

¶ 2. Jack Diamond owned and operated Allied Heirlooms, a profitable business in Picayune, Mississippi. Allied Heirlooms' primary business was cleaning and preserving wedding dresses. Diamond suffered a series of strokes in 1993 and 1994 which left him unable to care for himself or attend to his estate. A conservatorship for Diamond was established in 1994.

¶ 3. A series of conservators, guardians ad litem, attorneys, and other individuals engaged by the conservatorship came and went before Scott Morgan ("Morgan") became involved in the conservatorship. In December of 1995, Chancellor Taylor appointed his long-time friend Charles Morgan, Scott Morgan's father, as Successor Conservator for Jack Diamond. Charles Morgan initially was paid on an hourly basis for his services as conservator. Eventually he charged a flat fee of $7,500 per month. Shortly after Charles Morgan became Diamond's conservator, Morgan was named head of security for the conservatorship. He was paid $2,000 for an initial security survey, and later he was paid $3,000 per month as chief of security for the conservatorship. The conservatorship paid these sums, and the payments were approved by Chancellor Taylor.

¶ 4. Charles Morgan died on August 13, 1996. Judge Taylor and Greg Alston, the attorney for the conservatorship, approached Morgan at his father's funeral and told him that he was to be the new conservator. Morgan was appointed conservator on August 15, 1996. Morgan began receiving $7,500 per month as compensation for his duties as conservator. Morgan continued to work full-time as a Hattiesburg police officer where he made approximately $31,000 a year. Morgan and Alston agreed to pay the entire $7,500 monthly payment for August, 1996, to Joanne Morgan, Morgan's mother, even though Charles Morgan had only served through August 13, the date of his death. Alston and Morgan also agreed that Morgan would receive $7,500 for August even though he didn't begin to serve until August 15. These payments were approved by Judge Taylor.

¶ 5. During his tenure as chief of security for the conservatorship, Morgan hired friends and relatives, including several fellow Hattiesburg police officers, as security officers for Diamond and Allied Heirlooms in Picayune. He paid them $25 an hour even though the prevailing rate for similar work was $5.35 to $12 an hour. Morgan paid $6,647.60 to Jennifer Morgan, his wife, for security work performed from February to July of 1996. He paid $15,802.40 to Mike Dewease, his brother-in-law, over the time period from February to October, 1996. After Morgan replaced his father as conservator, he hired his brother, Chuck Morgan, to be the new chief of security. Chuck Morgan received $3,000 per month as security chief even though he worked offshore as a helicopter pilot, had no law enforcement experience, and had only two security officers to supervise. All in all, the Morgans spent over $65,000 in conservatorship funds on security. Testimony at trial revealed that there were conflicting opinions on the need for any security at all.

¶ 6. The prosecution showed that many conservatorship checks were written before the expenditures had been approved by the Chancellor and that Charles Morgan often withheld large amounts of cash from the conservator's paychecks he deposited into his personal account. The State attempted to infer that the cash withheld by Charles Morgan was paid to Judge Taylor, who had once paid for a Rolex watch with $10,900 in cash taken out of a paper bag.

¶ 7. Jay Jernigan served as attorney for the conservatorship in 1994 and 1995. On several occasions during that period of time Judge Taylor asked Jernigan to pad his legal bills and return part of the excess to him. On four or five occasions, Judge Taylor told Jernigan that he needed $3,000. Jernigan concluded that this was an attempted solicitation of a kickback by the judge. There was no proof that the judge ever actually received any payment.

¶ 8. Gene Combs testified that he approached Judge Taylor about purchasing Allied Heirlooms. The judge told Combs that if he allowed Combs to purchase the business, one-third of the business would have to be reserved for the judge personally. The judge also requested a political contribution. Combs also testified that Alston had told him that the judge would retain a third of the purchase price if the business was sold.

¶ 9. Scott Morgan testified in his own defense. He stated that he had not entered any conspiracy to defraud the conservatorship, that he had never paid kickbacks to the judge, and that the expenditures he had made as conservator were reasonable.

LAW

I. Was the indictment sufficient to inform Morgan of the charge against him?

¶ 10. Morgan claims that the indictment against him was so vague and indefinite that it did not fairly inform him of the crime alleged against him. The indictment read:

Beginning from on or about August 9, 1993 and continuing through November, 1996, in Forrest County, Mississippi, Gregory Alston, Scott Morgan, and Ike Farris, the defendants herein, did willfully, knowingly, unlawfully and feloniously conspire and agree together and with the late Chancery Judge William Robert Taylor, the late Charles Morgan, and with persons known and unknown to the Grand Jury, to cheat and defraud the conservatorship of Jack Diamond out of property and money in excess of $250.00, by means which are in themselves criminal, or which, if executed, would amount to a cheat, or to obtain money or any other property or thing by false pretense, in violation of MCA 97-1-1(d), as amended.

* * * * *

The scheme consisted of obtaining payment, payment for fees and services which were not reasonable, necessary, or earned, including, but not limited to attorneys fees, conservator fees, and fees for the Guardian ad litem. The scheme further included payments to Scott Morgan, his friends, family and relatives for services, including but not limited to security services, which were not reasonable, necessary or earned. The scheme also included demands by Judge Taylor for payment of money to him for which he was not entitled nor authorized by law to receive.

That all of the above conduct is in violation of MCA 97-1-1(d), as amended, MCA 97-1-1(f) and is against the peace and dignity of the State of Mississippi.

¶ 11. The accused "has a constitutional right to be informed of the nature and material elements of the accusation filed against him." Burchfield v. State, 277 So.2d 623, 625 (Miss.1973). In order to be sufficient, "the indictment must contain the essential elements of the crime with which the accused is charged." Hennington v. State, 702 So.2d 403, 407 (Miss. 1997). Rule 7.06 of the Mississippi Uniform Rules of Circuit and County Court Practice requires that an indictment contain "a plain, concise, and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation." King v. State, 580 So.2d 1182, 1185 (Miss.1991). Nothing more is required. Additionally, "an indictment which tracks the statutory language is generally sufficient to inform the accused of the charge against him." Cantrell v. State, 507 So.2d 325, 329 (Miss. 1987).

¶ 12. The indictment in this case fairly placed Morgan on notice that he was charged with conspiring with others to defraud the conservatorship of Jack Diamond. The indictment included the period of time involved, named four of the known alleged co-conspirators, and described the fraud as obtaining unreasonable or unearned payments or fees from the conservatorship and charging the conservatorship for unnecessary security. It tracked the language of Miss.Code Ann. § 97-1-1 (1994). The indictment sufficiently notified Morgan of the charge against him and enabled him to prepare a defense. This issue is without merit.

II. Did the trial court err in granting Jury Instruction 13?

¶ 13. Morgan claims that granting Jury Instruction 13 was error because it arguably failed to require jurors to find...