Terry v. State, 94-KA-00946-SCT

Decision Date06 August 1998
Docket NumberNo. 94-KA-00946-SCT,94-KA-00946-SCT
Citation718 So.2d 1115
PartiesKay TERRY, a/k/a Kay L. Terry, a/k/a Kay Lynn Terry v. STATE of Mississippi.
CourtMississippi Supreme Court

Willard L. McIlwain, Jr., Greenville, for Appellant.

Michael C. Moore, Attorney General, Jolene M. Lowry, Special Asst. Atty. Gen., for Appellee.

En Banc.

JAMES L. ROBERTS, Jr., Justice, for the Court:

STATEMENT OF THE CASE

¶1 Kay Terry was employed as a cashier at Friedman Iron & Steel in Greenville. She worked there from February 11, 1991, until June 1993. She was accused of embezzling large sums of money from her employer. Terry was tried first on January 4, 1994, resulting in a mistrial. She was tried the ¶2 Prior to the trial, Terry filed a motion for the Court to recuse itself. The trial judge, the Honorable Eugene M. Bogen of the Washington County Circuit Court (hereinafter "Judge Bogen"), overruled the first motion without a hearing, but later granted a hearing on the motion after Terry's attorney complained that he had requested a hearing. The motion was based on the involvement of the Special Prosecutor and his law partner in Judge Bogen's election campaign, as well as an alleged connection between Judge Bogen and Terry's employer. Judge Bogen overruled the Motion for Recusal. At trial, the court excluded testimonial evidence that someone other than Terry had taken the money. After disallowing any evidence of another being guilty of embezzlement, Judge Bogen denied Terry's jury instruction (D-5) that allowed a "not guilty" verdict if the jury found another to have taken the money. Judge Bogen based his denial on failure of the evidence to show that someone else took the money.

second time on September 7, 1994, and was convicted of embezzlement.

¶3 The jury found Terry guilty of the charge of embezzlement. Judge Bogen sentenced her to 10 years and ordered her to pay $100,000 in restitution and all costs, including the expenses for the removal of the case to Adams County. It is from this sentence that Terry has appealed raising the following assignments of error:

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO RECUSE ITSELF FROM THIS CASE.

II. WHETHER THE TRIAL COURT ERRED IN FAILING TO ALLOW TERRY TO PUT ON TESTIMONY AND OTHER EVIDENCE AS TO ALTERNATE THEORIES OF HER DEFENSE.

III. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW TERRY TO IMPEACH A STATE'S WITNESS WITH AN ALTERED DOCUMENT.

IV. WHETHER THE TRIAL COURT ERRED IN REFUSING INSTRUCTION D-5.

STATEMENT OF FACTS

¶4 Kay Terry was a cashier at Friedman Iron & Steel. She had been employed there from February 11, 1991, until June 1993. Terry was accused of embezzling large sums of money. Her first trial ended in a hung jury on January 4, 1994. Terry was convicted at her second trial of the embezzling charge and sentenced to 10 years in prison and ordered to pay restitution of $100,000.

¶5 Prior to the trial, Terry filed a motion for Judge Bogen to recuse himself. This motion was at first overruled without a hearing, although one had been requested. Later after Terry complained, a hearing was granted with the same disposition as before. Terry based her motion on evidence that the Judge Bogen had exhibited bias and prejudice toward her and her attorney.

¶6 The following examples were offered to Judge Bogen as evidence of this bias and prejudice:

1. Terry had originally been released on her own recognizance, but the judge revoked her bond and imposed a $25,000 bond. Terry had no criminal record and other area defendants' bonds were lower.

2. The relationships between the Special Prosecutor, Gaines Dyer; his brother (law partner), Howard Dyer, III; Terry's employer, Friedman; and Judge Bogen; were called into question.

3. Evidence that the Dyer law firm was one of the largest contributors to the Bogen campaign when he ran for circuit judge.

4. Howard Dyer, III, served as one of Judge Bogen's campaign managers.

5. Evidence existed that Gaines Dyer's clients got favorable treatment when appearing in front of Judge Bogen.

6. Judge Bogen had approached Terry's attorney requesting that he be allowed to add his name to a list of supporters in an ad in the newspaper. When the attorney refused, he felt he was treated "coolly." The attorney felt that pressure was being placed upon him to 7. Prior to Terry's second trial, Judge Bogen brought contempt proceedings against Terry, her attorney, and a third party. These constructive contempt proceedings were also handled by Judge Bogen, and he sentenced Terry, her attorney, and the third party, to all serve time in jail.

allow his name to be used as part of a political campaign.

8. Although in the first trial he allowed the proof, Judge Bogen refused to allow Terry to offer proof in the second trial that Friedman had taken the money instead of her.

¶7 A Motion in Limine was filed by the State to exclude any comment or proof regarding, among other things:

1. That Friedman maintained an employee theft insurance policy on which they collected $100,000 as a result of the allegations against Terry.

2. The allegation by Terry that the company was in bad shape, financially.

3. That Friedman possessed large sums of cash.

4. That Friedman had taken funds which Terry was accused of taking.

¶8 The insurance claim was paid as a result of the investigation of tickets and documents assimilated by Friedman's wife, a CPA, for the purpose of obtaining insurance benefits. The State's CPA, who was a key witness, examined the records compiled by Friedman's wife. In the second trial the court did not allow any testimony concerning the issue of employee theft insurance or that the records the State's CPA based his testimony on were compiled by Friedman's wife to make an insurance claim.

¶9 Judge Bogen did not allow any testimony suggesting that Friedman took the money from the cash drawer instead of Terry. No mention was permitted regarding the theft insurance policy, nor the financial situation of the company. The only proof allowed regarding these topics was a written proffer. The trial court did allow testimony that other employees were responsible for the alleged losses, but proof of Friedman's responsibility for the losses was excluded.

¶10 Terry was a weigher and cashier at the company. The customer would bring in scrap metal materials, and Terry and another cashier, who shared responsibilities, would weigh the metal and pay the customer. A ticket would be filled out showing the weight, date and the amount paid to the person. A computer sheet was also generated which had a number corresponding to that of the ticket. Contrary to the State's original theory, almost half of the tickets with an error were in the handwriting of the other cashier.

¶11 One of the State's witnesses was a CPA named Bobby Dalton, who was hired by the insurance company to examine the records furnished to him by Mr. Friedman's wife. These records were used to determine whether or not Kay Terry had misappropriated money, and whether the insurance company would pay Friedman's $100,000 claim under the employee theft policy. Terry renewed her request to introduce evidence concerning the source of the information on which Mr. Dalton relied. Judge Bogen ruled that he would not allow impeachment of Mr. Dalton's testimony. Terry sought to cast doubt on Dalton's investigation since it was primarily based on information which emanated from Friedman's wife who had a pecuniary interest in collecting on the insurance claim.

¶12 The defense contended that the prosecution opened the door by placing Dalton on the stand and asking him questions related to his examination on behalf of the insurance company. Dalton acknowledged that some of the transactions that showed discrepancies were dated prior to the time Terry started work at Friedman's. Dalton also acknowledged that all of the information furnished to him was provided by the people at Friedman's. Dalton admitted that he originally had written a letter saying that all of the tickets in question were in Terry's handwriting. Later proof revealed that these tickets were in the handwriting of the other cashier and that no tickets were falsified by Terry. Further, Dalton stated there was no way to prove who entered the different figure from a ticket into the computer printout p 13. Tim Bixler, an executive with Friedman Iron & Steel, testified concerning the transaction journal (computer printout). He testified that it could not be altered. In an attempt to impeach Bixler's testimony that the journal could not be altered, counsel for Terry handed him a phony transaction journal and a ticket. Bixler was asked to distinguish between the real transaction journal and the false one. Judge Bogen asked the defense counsel what he wanted the witness to do. The attorney responded, "I want him to acknowledge that he identified a document as being a transaction journal and just then called this the real one and did not know the difference." Judge Bogen then admonished Terry's counsel and refused to allow Bixler to be impeached by the use of an altered document.

¶14 Harvey Tackett, Jr., CPA, testified regarding the tickets, ledgers, cash drawer, safe, etc. Tackett said that the person who took the money, would have needed access to the computer system, the cash drawer, the safe and "without question be able to get into the building after hours when no one else was there...." Terry testified that she did not have the code to the security system, but that Bixler, Friedman, and Hammers, did have it. Terry also denied having taken any money from the company. Terry testified that during the nine (9) months prior to working at Friedman's, she had been unemployed and had substantial income. Her deposits ranged from approximately $3,000 to $6,000 per month.

¶15 Terry testified that her handwriting and that of the other cashier were different. Terry agreed with the handwriting expert that almost half of the tickets with discrepancies on...

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