Taylor v. State, 98-KA-00371-COA.

• Decision Date: 25 January 2000
• Docket Number: No. 98-KA-00371-COA.,98-KA-00371-COA.
• Citation: 754 So.2d 598
• Parties: Beverly Jean TAYLOR, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

754 So.2d 598

Beverly Jean TAYLOR, Appellant, v. STATE of Mississippi, Appellee.

No. 98-KA-00371-COA.

Court of Appeals of Mississippi.

January 25, 2000.

Brian H. Neely, Attorney for Appellant.

Office of the Attorney General by Deirdre McCrory, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., BRIDGES, LEE, AND PAYNE, JJ.

BRIDGES, J., for the Court:

¶ 1. Beverly Jean Taylor was charged under a five count indictment and convicted in the Circuit Court of Alcorn County on three counts of embezzlement of public funds. She was sentenced to three concurrent ten-year terms of imprisonment with seven years of each suspended and ordered to pay restitution in the amount of $5,625 plus court costs. Aggrieved by the judgment rendered against her in the lower court, Taylor has perfected an appeal to this Court. Seemingly leaving no stone unturned, Taylor runs the gambit, alleging error in every facet of the trial process. Her assignments of error are as follows

I. THE TRIAL COURT COMMITTED PLAIN ERROR BY OVERRULING DEFENSE COUNSEL'S MOTION TO QUASH THE INDICTMENT BASED UPON THE THEORY OF MULTIPLICITY.

II. THE TRIAL COURT COMMITTED PLAIN ERROR BY OVERRULING DEFENSE COUNSEL'S MOTION TO QUASH THE INDICTMENT BASED UPON THE THEORY OF DUPLICITY.

III. THE TRIAL COURT COMMITTED PLAIN ERROR BY OVERRULING DEFENSE COUNSEL'S MOTION TO DISMISS BASED UPON DEFENDANT'S SIXTH AMENDMENT RIGHT TO A SPEEDY TRIAL.

IV. THE TRIAL COURT COMMITTED PLAIN ERROR BY OVERRULING DEFENSE COUNSEL'S MOTION TO DETERMINE THE MAKE-UP OF THE GRAND JURY AND FOR ADDITIONAL TIME.

V. THE TRIAL COURT COMMITTED PLAIN ERROR BY OVERRULING DEFENSE COUNSEL'S MOTION FOR AN INTERLOCUTORY APPEAL.

VI. THE TRIAL COURT COMMITTED PLAIN ERROR BY OVERRULING DEFENSE COUNSEL'S MOTION FOR A CONTINUANCE.

VII. THE TRIAL COURT COMMITTED PLAIN ERROR BY OVERRULING DEFENSE COUNSEL'S MOTION TO DISMISS

AND/OR FOR A MISTRIAL PURSUANT TO BATSON v. KENTUCKY.

VIII. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO DISMISS BASED UPON THE APPLICABLE STATUTE OF LIMITATIONS.

IX. THE TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING THE INTRODUCTION OF DOCUMENTARY EVIDENCE OVER THE OBJECTION OF DEFENSE COUNSEL.

X. THE TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING INTRODUCTION OF THE EXPERT OPINION OF BURT HANEY OVER OBJECTION OF DEFENSE COUNSEL.

XI. THE TRIAL COURT COMMITTED PLAIN ERROR IN DENYING DEFENSE COUNSEL'S MOTION FOR A NOT GUILTY VERDICT.

XII. THE TRIAL COURT COMMITTED PLAIN ERROR IN DENYING DEFENSE COUNSEL'S MOTION FOR A JNOV.

XIII. THE TRIAL COURT COMMITTED PLAIN ERROR IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL.

XIV. THE TRIAL COURT COMMITTED PLAIN ERROR IN THE APPLICATION OF A SENTENCE IN VIOLATION OF THE EIGHTH AMENDMENT PROHIBITION AGAINST CRUEL AND UN-USUAL PUNISHMENT.

Finding each assignment of error without merit, we affirm.

FACTS

¶ 2. Taylor was hired by the City of Corinth on January 13, 1981, as secretary for then Mayor Edward Bishop. In July of 1994, working her way up through the city administration, Taylor was given the responsibilities of Deputy City Clerk in addition to her secretarial duties for the mayor's office. This new assignment required her to account for the payroll, oversee disbursement of city funds and supervise the City Court Clerk's fund among other collateral matters.

¶ 3. James R. Billingsley, the clerk for the City of Corinth since 1983, testified that in December 1994 he discovered that city funds were missing. The following January, the city contract auditors, Dobbins and Brawner, looked into the alleged discrepancy and confirmed that funds were, indeed, missing. On February 17, 1995, after a more detailed audit, the State Auditor's Office was notified of irregularities surrounding funds handled by Taylor for the clerk's office. In particular, Taylor's shared control over the "police court clerk clearing account" linked her to the missing city funds.

¶ 4. Regarding this fund, Billingsley explained that the account held money placed there by a defendant in a pending action until such time as the court disposes of the case. If the court found the defendant not guilty, the defendant's money was returned. If the court found the defendant guilty, the fine was forfeited to the city and placed in the municipal general fund. Depending upon the type of offense, a check was then written out of the municipal general fund to the State of Mississippi.

¶ 5. Billingsley described the typical process surrounding payment of a fine as a fairly simple procedure. Anyone owing a fine for speeding, DUI or other similar matters came to the police department and paid the fine in cash or by bond to a police dispatcher on duty. The dispatcher took the payment, wrote a receipt for the amount received and placed the money in an envelope identified with the person's name and amount of money contained in the envelope. Periodically, the dispatcher brought the brown envelopes containing the money and the receipt book upstairs to a deputy city clerk, primarily Taylor, but other deputy city clerks accepted the envelopes and receipts on occasion. The deputy city clerk then counted the money contained in the envelope, checked it against the information on the envelope, checked it against the receipt book itself, prepared a deposit slip for the requisite amount and deposited the city funds in the bank.

¶ 6. In addition, a separate ledger book was kept in the city clerk's office. The deputy city clerk took the information from the brown envelopes and the receipt book, which had to be returned to the dispatcher's office as soon as possible to accommodate members of the public arriving to pay their fines, and made entries into the ledger book regarding the transactions before the bank deposit was made. The ledger recorded the name of the defendant, case number, receipt number and amount of money received from the person paying the fine. Furthermore, there was a "regular fine" book and a "state bond fee" book where fines paid or forfeited by a defendant and state bond fees the greater of twenty dollars or two percent of the fine were recorded, respectively.

¶ 7. Burt Haney handled the investigation of these suspicious circumstances for the State Auditor's Office. After speaking with the CPA firm responsible for the audit, Haney took all available records and began scheduling every receipt he could document that came through city hall by way of the police department. Haney noted seventeen instances where entire deposits of fine money failed to make it into the bank. In addition, twenty-six instances of deposits deficient in regard to the deposited amount and the corresponding receipts representing fines covered by the deposit were found. During the auditing process, Haney reviewed the police receipt books, city court clerk's ledger, deposit slips, bank statements and the remaining envelopes which had been used to transport the money. All but three of the envelopes used to transport the money during the period Haney audited were missing. Without the envelopes, Haney used the receipt books, as they were initialed by the receiving deputy clerk and the ledger book to reconstruct the trail the money took from the police dispatcher through the clerk's office into the bank. Haney found that the deficiencies were attributable to a time frame that coincided with Taylor's shared control over the fund. Further, Haney found that Taylor signed off on the receipt books for money received that never made it to the bank.

¶ 8. Taylor testified that without the brown envelopes sent up from the police dispatcher to reconcile against her entries in the deputy clerk's ledger, she would be unable to reconstruct the exact chain of custody of the funds in question. Evidence was presented at trial that all but three of the brown envelopes used to transport the funds from the police dispatcher to the clerk's office during the time in question were missing as well as some ledger entries. Taylor testified that initialing the receipt book as having received the amount of money listed on the receipts and envelopes did not, in fact, mean that she actually received that exact amount of money. She testified that she did not normally follow proper procedure by counting the funds and balancing them with the ledger upon signing for the funds because she was busy with other responsibilities, such as getting the payroll completed.

¶ 9. Regarding Counts II, III and IV of the indictment under which Taylor was convicted, Haney testified that a block of receipts and journal entries posted October 3, 1994, totaled $2,225; another block, posted on November 14, 1994, totaled $1, 325; and a third block totaling $2,075 was posted on November 21, 1994.¹ All of these amounts were signed as received by Taylor and none were deposited into the city's bank account.

DISCUSSION

¶ 10. From a careful reading of appellant's brief, one can glean fourteen assignments of error. The issues listed in the table of contents in appellant's brief do not correspond accurately to the statement of the issues presented, nor to those issues argued in the body of the brief. Under the argued issues, appellant makes broad based, sweeping allegations under certain assignments of error. While it is her right to appeal whatever error she believes the trial court committed, we take this opportunity to remind all those who invoke the jurisdiction of this Court that briefs are filed to assist the Court. Dozier v. State, 247 Miss. 850, 851, 157 So.2d 798, 799 (1963). "In other words, the purpose is to aid the appellate court in determining what the law is." Dozier, 247 Miss. at 852, 157 So.2d at 799. It is therefore a necessity that attorneys plead with particularity by citing specific cases that support the proffered argument.

¶ 11. In crafting thirteen of the alleged errors, Taylor asserts plain error occurred at the trial level, thus requiring a different standard of review than this Court normally adopts. The ...