Terrell v. State

Citation237 So.3d 717
Decision Date04 January 2018
Docket NumberNO. 2016–KA–00774–SCT,2016–KA–00774–SCT
Parties Robert Patrick TERRELL a/k/a Robert P. Terrell a/k/a Patrick Terrell v. STATE of Mississippi
CourtUnited States State Supreme Court of Mississippi

ATTORNEY FOR APPELLANT: J. M. RITCHEY

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KAYLYN HAVRILLA McCLINTON

EN BANC.

MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. In 2011, Robert Patrick Terrell—through his middleman Archie Nicholson—recruited Ricardo L. Hawthorne to record forged property deeds purporting to convey John McLendon's property to Hawthorne. Terrell and his coconspirators then used the forged deeds to fraudulently induce a timber company to buy the timber rights for $20,300 and, unbeknownst to McLendon, harvest his timber. A jury found Terrell guilty of timber theft, conspiracy to commit timber theft, false pretenses, and conspiracy to commit false pretenses.

¶ 2. Because the evidence was sufficient to convict Terrell of both timber theft and false pretenses, we affirm those convictions and sentences. However, we agree with Terrell that the evidence supported only one conspiracy between Terrell, Nicholson, and Hawthorne, not two. We therefore vacate his two conspiracy sentences and remand the two conspiracy convictions to the trial court with instructions to dismiss—at the State's election—one of the conspiracy counts and resentence Terrell on the remaining conspiracy count.

Background Facts and Procedural History

I. Indictment

¶ 3. In March 2013, a grand jury returned a twenty-count indictment against Terrell, Nicholson, and Hawthorne. The charges stemmed from their scheme to "sell" the timber on McClendon's property to Brushy Creek Timber Company. The State charged that Terrell, who worked in the timber industry and was familiar with property deeds, with Nicholson as the go-between, recruited Hawthorne to record forged warranty deeds purporting to convey McLendon's family property to Hawthorne. Hawthorne then sold these fraudulently obtained timber rights to the property to Brushy Creek for $20,300. Brushy Creek, which had no idea the timber deed was forged, then harvested and sold McLendon's timber.

II. Trial

¶ 4. Only Terrell was tried. At the beginning of trial, the State dismissed sixteen counts and proceeded to trial on the remaining four counts—(1) timber theft, (2) conspiracy to commit timber theft, (3) false pretenses, and (4) conspiracy to commit false pretenses.

A. The State's Evidence

1. Investigators

¶ 5. The State's first witness was State Trooper Demetrius Hawthorne (no relation to Ricardo Hawthorne). In 2011, Hawthorne was a deputy sheriff in Jefferson Davis County. On May 28, 2011, McLendon reported to the sheriff's office that someone had been harvesting timber on his family's property. After visiting McLendon's property himself and seeing the large equipment and cut timber, Deputy Hawthorne contacted the Department of Agriculture.

¶ 6. Chris Newman, an investigator with the Department of Agriculture, also testified. Newman's investigation revealed two recorded deeds—one from John McLendon and one from Clarence McLendon—both conveying property to Ricardo Hawthorne. Newman also found a third warranty timber deed conveying Hawthorne's timber rights to Brushy Creek.

¶ 7. Newman showed the deeds to John McLendon, who maintained he never signed them. With the recorded deeds were two affidavits of heirship. One affidavit was from someone named John Smith, who claimed to have known A.C. McLendon. According to Smith, A.C. had died and left as his sole heirs John McLendon and Clarence McLendon. The other affidavit was from someone named Ray Rodgers. Rodgers's affidavit claimed he had known Ellawese McLendon and that she had died, leaving as her sole heirs John McLendon and Clarence McLendon. But Newman's investigation revealed this claim was false. In truth, Ellawese was still alive. In fact, Newman had talked to her the morning of trial. Newman also discovered that Clarence McLendon did not exist.

¶ 8. Newman ultimately approached Ricardo Hawthorne about the bogus documents.

And Hawthorne confessed to forging them. Hawthorne explained that Terrell and Nicholson were also part of the scheme.

2. Victims

¶ 9. McLendon's testimony corroborated Newman's. He clarified that Ellawese was his wife of fifty years, not his mother, and that she was still alive and quite spry for her age. And he had never heard of Ray Rodgers, John Smith, or his purported brother, Clarence.1 John McLendon never signed the warranty deed claiming to transfer his property to Hawthorne, which did not even list his correct phone number. In fact, the first time he ever met Hawthorne was in the sheriff's office, after the investigation started.

¶ 10. But McLendon did know Terrell. Terrell had approached McLendon in 2007 about buying some timber. McLendon said he had agreed to help Terrell out by selling below "cruise" price. After Terrell drafted a contract, a man who McLendon assumed was Terrell's business partner, Isaac Haynes, wrote McLendon a check for $20,000. The check bounced. And the deal fell through. After that, McLendon refused to have any further dealings with Terrell.

¶ 11. The State also called representatives of Brushy Creek. In April 2011, forester Robert Newsome worked for Brushy Creek. Part of his job was to locate property owners willing to sell timber. If he found an interested owner, Newsome would "cruise" the owner's property to evaluate the timber for purchasing. Newsome testified he had talked to Terrell several times about the Hawthorne deal. "[Terrell] would call me to know what the hold up was on the money issue and stuff like that."

¶ 12. Randy Davis owned Brushy Creek. He testified someone had called Brushy Creek's office about some prospective timber property. Davis had Newsome follow up with the lead. Newsome met someone at the land located between Joe Griffith Road and Hammond Road—where McLendon's property is located. Newsome told Davis the timber looked good. So Davis went out there and met with Hawthorne and another unidentified man.

¶ 13. Hawthorne told Davis he had inherited the land "from his grandfather or something." Davis "cruised" the timber and offered $20,300. Hawthorne accepted. Hawthorne then hired an attorney to issue a title opinion. Based on this opinion, which relied on the forged deeds, Brushy Creek wrote Hawthorne a $20,300 check. Then, based on its contract with Hawthorne, Brushy Creek harvested the timber. Davis testified Brushy Creek sold the timber for a profit.

3. Coconspirators

¶ 14. Terrell's coconspirators were also called. Nicholson testified that he had worked for Terrell since 2005, taking down trees after Hurricane Katrina. At first, Nicholson said Hawthorne had approached him about needing some work, so Nicholson introduced Hawthorne to Terrell. But then the State confronted him with his prior statement he had given to Newman. At that point, Nicholson admitted that it was Terrell who had asked him if he knew anyone who would be willing to sign some deeds. So Nicholson called Hawthorne, who agreed to forge and record the bogus deeds for Terrell. Nicholson also took Hawthorne to McLendon's land to meet the men from Brushy Creek. Nicholson testified he was supposed to receive $5,000 from the purchase-price money but never did. On cross-examination, Nicholson testified the State agreed to let him out of jail, where he remained on bond, and drop the charges if he testified against Terrell.

¶ 15. Hawthorne testified he had been offered $2,000—$1,000 upfront and $1,000 after the deal closed—to record the false deeds. Hawthorne said he did not draft the deeds, nor had he ever met the person who notarized them. At first, he said only Nicholson put him up to it. However, the State impeached him with a prior statement he had given, in which he implicated Terrell as the person who had organized the scheme. Hawthorne insisted he had given the statement to try and "put it off on Pat Terrell." Hawthorne also claimed that, after he received the $20,3000 check from Brushy Creek, he tried to give Terrell his cut of the money through a third person, but Terrell refused. When asked pointedly if someone had paid him not to testify against Terrell, Hawthorne admitted Terrell had paid him several hundred dollars not to testify against him.

4. Civil Judgments Against Terrell

¶ 16. As its final witness, the State called Clint Langley of the Jefferson Davis County Circuit Clerk's office. Langley sponsored the admission of several civil judgments against Terrell related to forged deeds and his wrongful taking of timber.

¶ 17. The State tried to call Langley earlier in the trial. But Terrell objected, arguing Langley had not been disclosed as a potential witness. See URCCC 9.04(I).2 According to the State, Terrell could not claim any unfair surprise. The prosecutor explained he had just learned about the judgments the morning of trial. But Terrell's trial attorney had personally represented Terrell in these civil matters and was well aware of them. The State offered the judgments under Mississippi Rule of Evidence 404(b). The trial judge agreed they qualified as Rule 404(b) evidence but noted he would have to balance the judgments' admissibility with the potential prejudice. See M.R.E. 403.

¶ 18. Terrell did not dispute the judgments' admissibility under Rule 404(b). Rather, his objection was based solely on Rule 9.04. His attorney insisted the judgments had to be disclosed during discovery to avoid trial by ambush. The trial judge reasoned, "You're not surprised ... if you were his lawyer." Still, the judge acknowledged Terrell's counsel needed time to further review the documents, citing Box v. State , 437 So.2d 19 (Miss. 1983). The judge ruled the State could not call Langley at that point in the trial but possibly could call Langley later.

¶ 19. At the close of its case-in-chief, the State recalled Langley. And this time, the judge permitted Langley to testify. Terrell's lawyer requested a mistrial...

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    • United States
    • Mississippi Supreme Court
    • January 16, 2020
    ...the procedures set forth in Box v. State , 437 So. 2d 19, 23–24 (Miss. 1983) (Robertson, J., specially concurring)." Terrell v. State , 237 So. 3d 717, 730 (Miss. 2018). "These Box procedures apply when the State attempts to enter previously undisclosed evidence over the defendant's objecti......
  • Smith v. State
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    ... ... or closing arguments is alleged, the applicable standard of review requires the Court to determine "whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created." Terrell v. State , 237 So.3d 717 (¶ 92) (Miss. 2018). A. Alleged Burden-shifting Arguments ¶ 39. Smith takes issue with the prosecutor's comments in closing that "[t]he defense hasn't put on one shred of evidence contradicting the elements of ... the crime ... of armed robbery];" and his argument later ... ...
  • Barnes v. State
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    • Mississippi Court of Appeals
    • April 12, 2022
    ...the procedures set forth in Box v. State , 437 So. 2d 19, 23-24 (Miss. 1983) (Robertson, J., specially concurring)." Terrell v. State , 237 So. 3d 717, 730 (Miss. 2018). "These Box procedures apply when the State attempts to enter previously undisclosed evidence over the defendant's objecti......
  • Hall v. State
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    • Mississippi Court of Appeals
    • December 17, 2019
    ...is procedurally barred from consideration on appeal. Fowler v. White , 85 So. 3d 287, 293 (¶21) (Miss. 2012) ; see also Terrell v. State , 237 So. 3d 717 (Miss. 2018) ("An established principle of appellate review is that issues not brought before the trial court are deemed waived and may n......
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2 books & journal articles
  • Impeachment
    • United States
    • James Publishing Practical Law Books Trial Evidence Foundations Witnesses
    • May 5, 2019
    ...properly permitted the State to offer bad acts evidence for the purpose of rebutting defendant’s fabrication defense. Terrell v. State , 237 So. 3d 717; 2018 Miss. LEXIS 1; 2018 WL 288056 (Miss. 2018), A jury found defendant guilty of timber theft, conspiracy to commit timber theft, false p......
  • Witnesses
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2018 Contents
    • July 31, 2018
    ...properly permitted the State to o൵er bad acts evidence for the purpose of rebutting defendant’s fabrication defense. Terrell v. State , 237 So. 3d 717; 2018 Miss. LEXIS 1; 2018 WL 288056 (Miss. 2018), A jury found defendant guilty of timber theft, conspiracy to commit timber theft, false pr......

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