Wheeler v. State, 07-KA-59245

• Decision Date: 11 April 1990
• Docket Number: No. 07-KA-59245,07-KA-59245
• Citation: 560 So.2d 171
• Parties: Bobby Joe WHEELER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 171

560 So.2d 171

Bobby Joe WHEELER v. STATE of Mississippi.

No. 07-KA-59245.

Supreme Court of Mississippi.

April 11, 1990.

Thomas L. Kesler and Joe O. Sams, Jr., Sams Kesler & Hudson, Columbus, for appellant.

Mike C. Moore, Atty. Gen., and Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

En banc.

SULLIVAN, Justice, for the Court:

Bobby Joe Wheeler was convicted of armed robbery and sentenced to serve twenty (20) years in the custody of the Mississippi Department of Corrections. The trial was had in the Circuit Court of Oktibbeha County, Mississippi, Honorable Ernest L. Brown presiding. From the verdict and sentence Wheeler appeals and the issue raised is:

1. Did the trial court improperly refuse Wheeler's requested jury instruction concerning accomplices' testimony?

On April 8, 1982, at approximately 7:00 p.m., Bob Collier, his wife, Betty, and their grandson were at Collier's home in Starkville, Mississippi. Neal Woodard (Woodard) and Franklin Holmes (Holmes) knocked on the door and when they were admitted, forced the Colliers at gunpoint to lie on the floor, where they were bound with tape. Woodard and Holmes proceeded to ransack their home and rob them of $84.00 in cash, two diamond cluster rings, a set of diamond earrings and Mrs. Collier's wedding rings.

The first break in the investigation of this case came in February of 1987, when Oktibbeha County Sheriff Dolph Bryan received a phone call from an Alabama Alcohol and Firearms agent that one, Neal Woodard, had provided information concerning the robbery. Subsequently, Bryan went to Alabama where Woodard gave a statement which led to the arrest of Franklin Holmes. At the Wheeler trial, Woodard testified that Wheeler had asked him to rob Collier and told him that Collier had $80,000.00 concealed in his home.

Woodard recruited Holmes to help him in the robbery. Both Woodard and Holmes admitted committing the robbery. Woodard, who surrendered to the Alabama Bureau of Investigation, agreed to exchange his testimony for complete immunity and was granted absolute immunity both from the State of Alabama and the State of Mississippi. Woodard then admitted to approximately 25 felonies.

In March, 1987, Woodard and an undercover agent went to Wheeler's car lot in an attempt to engage him in conversation regarding the armed robbery.

Holmes testified that five years after the crime, in 1987, he turned himself in to authorities. Holmes has been charged with armed robbery and claims to have made no deals with the State. Holmes admitted to being involved in two felonies, one in Mississippi and one in Alabama. In spite of admitting his complicity in the robbery, Holmes has pled not guilty to the charges.

Robert F. Collier, the victim, testified that he owned an auto auction in Columbus, Mississippi, and knew Wheeler through his auction. His description of the events on the night of the robbery duplicated that of Woodard and Holmes. Mr. Collier stated that he saw their faces before they pulled stocking masks over them. Five or six years later, Collier identified Woodard and Holmes as the culprits from approximately eight or ten photographs. Within a week after identifying the two robbers, he told the sheriff that he remembered seeing them prior to the robbery at an auction with Bobby Joe Wheeler.

Wheeler testified that he had no involvement in the Collier robbery and specifically denied attending an auto auction with Woodard or Holmes. Wheeler said that he had met Woodard through a former employee of his who was currently doing time in Alabama for armed robbery. Wheeler claimed that Woodard had committed the actual robbery and had testified against the former employee in the same manner that he was now doing against Wheeler.

At the conclusion of the trial Wheeler offered the following jury instruction, which was refused by the trial court:

INSTRUCTION D-2

The Court instructs the Jury that the law looks with suspicion and distrust on the testimony of an alleged accomplice, and requires the jury to weigh same with great care and caution and suspicion. You should weigh the testimony from alleged accomplices, and passing on what weight, if any, you should give the testimony, you should weigh it with great care and caution, and look upon it with distrust and suspicion.

The following jury instruction was granted:

INSTRUCTION C-20

Neal Woodard and Franklin Holmes are accomplices in this case, and the testimony of an accomplice is to be considered and weighed with great care and caution. You may give it such weight and credit as to which you deem it to be entitled.

"Caution and suspicion" instructions in regard to accomplice testimony have been a frequent topic of discussion in our jurisprudence. In Catchings v. State, 394 So.2d 869, 870 (Miss.1981), this Court overruled the defendant's grand larceny conviction where his conviction was based upon an accomplice's testimony alone and said that an accomplice's testimony must be "viewed with great caution and suspicion." See Pegram v. State, 223 Miss. 294, 303, 78 So.2d 153, 156 (1955) (armed robbery conviction reversed and remanded, court should have granted jury instruction which admonished jury to weigh an accomplice's testimony with great care, caution, suspicion, and distrust); Cole v. State, 217 Miss. 779, 785, 65 So.2d 262, 264 (1953) (theft conviction reversed and remanded, testimony of accomplice should be viewed with great caution and suspicion); Nichols v. State, 174 Miss. 271, 277, 164 So. 20, 22 (1935) (jury was instructed that in considering the testimony of an accomplice, you are to weigh it with great care, caution, suspicion, and distrust, burglary conviction upheld where evidence of an accomplice was supported by other evidence); Boutwell v. State, 165 Miss. 16, 26, 143 So. 479, 481-482 (1932) (refusal of defendant's proposed instructions was harmless error because jury was instructed to weigh accomplice's testimony with great care and caution and to look upon it with distrust and suspicion).

In Derden v. State, 522 So.2d 752, 754 (Miss.1988) we said:

[W]hen it came time to instruct the jury on the law the trial court quite properly granted the following instruction:

* * * * * * You are to regard this testimony with great suspicion and to consider it with caution.

Had the trial judge not granted this instruction, the colloquy set out above would constitute reversible error and an abuse of discretion by the trial judge and it would be necessary for this Court to reverse the conviction. However, because the trial judge properly granted the "caution and suspicion" instruction the jury was properly instructed as to the law and the conviction can be affirmed. (Emphasis added).

The Derden Court went on to say:

Clear law in the State of Mississippi is that the jury is to regard the testimony of co-conspirators with great caution and suspicion. (Emphasis added). Winters v. State, 449 So.2d 766, 771 (Miss.1984); Simpson v. State, 366 So.2d 1085, 1086 (Miss.1979); Thomas v. State, 340 So.2d 1, 2 (Miss.1976).

As a general rule a trial judge should not hesitate to grant the cautionary instruction when the State is relying upon the testimony of co-conspirators.

In Van Buren v. State, 498 So.2d 1224, 1229 (Miss.1986), this Court said, "the granting of a cautionary instruction regarding the testimony of an accomplice is discretionary with the trial judge." (Citations omitted). However, that discretion is not absolute; it may be abused.

522 So.2d at 754.

The Derden case stated that two of the aspects in determining whether a trial judge has abused his discretion concerning a "caution and suspicion" instruction are: (1) was the witness an accomplice; and, (2) was his testimony without corroboration. In Green v. State, 456 So.2d 757, 758 (Miss.1984), this Court said that a judge's discretion is subject to abuse when the State's evidence rests solely upon the testimony of an accomplice and there is some question as to the reasonableness and consistency of the testimony, or the defendant's guilt is not clearly proven.

Obviously, without the testimony of Woodard and Holmes, there is insufficient evidence to sustain a conviction. Because of this and because his guilt was not clearly proven, the judge's discretion was subject to abuse. See Holmes v. State, 481 So.2d 319, 322 (Miss.1985); Hussey v. State, 473 So.2d 478, 480 (Miss.1985).

The trial judge was of the opinion that in all accomplice situations, one instruction is sufficient. In refusing proposed jury Instruction D-2, the trial judge stated "I'm going to give C-20 because it's a correct instruction. And I prefer it really over yours. And I've given it in every case in which I have had co-conspirators testify ... I just cleaned up the--the grammar a little bit."

Although the prosecution cites Wilson v. State, 71 Miss. 880, 884-886, 16 So. 304, 305 (1894), that case supports the position taken by Wheeler:

The testimony of an accomplice is from a suspicious source. It is to be viewed with caution and carefully scrutinized, because of its polluted source; ...

The rule is for the presiding judge to inform the jury that the testimony of an accomplice is to be received and considered with caution, as from a polluted and suspicious source, but it must, in large measure, be left to the judges to choose the language in which this caution shall be given. There is no uniform rule. Cases vary with circumstances. In some cases stronger words of caution might be more appropriate than in others. In Green v. State, 55 Miss. 454, the judgment sentencing to death was reversed because of the refusal of the trial court to give an instruction asked by the accused, to the effect that "the testimony of an accomplice in crime should be received with the utmost caution, and the jury may wholly disbelieve such testimony altogether." (Emphasis added).

Because of the source and the nature of the evidence presented in this case, "stronger words of...