Fagan v. State

894 So. 2d 576, 2004 WL 2903712
Mississippi Supreme Court·Decided December 16, 2004·No. 2001-CT-01336-SCT·Published·Cited by 6 cases

Opinion

894 So.2d 576 (2004)

Mary Lynn FAGAN
v.
STATE of Mississippi.

No. 2001-CT-01336-SCT.

Supreme Court of Mississippi.

December 16, 2004.
Rehearing Denied March 10, 2005.

William B. Jacob, Joseph A. Kieronski, Jr., Daniel P. Self, Jr., Meridian, attorneys for appellant.

Office of the Attorney General, by Scott Stuart, attorneys for appellee.

EN BANC.

ON WRIT OF CERTIORARI

CARLSON, Justice, for the Court.

¶ 1. From a Clarke County Circuit Court judgment of conviction on three counts of embezzlement, Mary Lynn Fagan appealed to this Court, and the case was assigned to the Court of Appeals, which, in a 5-5 decision, affirmed the circuit court's judgment of conviction. Fagan v. State, 881 So.2d 851 (Miss.App.2003). Fagan filed a petition for writ of certiorari, asserting errors both in the trial court judgment and in the Court of Appeals' affirmance of the trial court judgment, and we granted certiorari. Fagan v. State, 878 So.2d 66 (Miss.2004). We granted certiorari to consider the issue involving repeated references to a polygraph examination. Finding that these repeated references to a polygraph examination were prejudicial in *577 this close, circumstantial evidence case and, thus, deprived Fagan of a fair trial, we reverse the judgments of the Court of Appeals and the Clarke County Circuit Court and remand this case for a new trial consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. These facts are quoted verbatim from the opinion of the Court of Appeals:

Mary Lynn Fagan worked as a deputy clerk in the Clarke County Justice Clerk's (sic) office from 1994 until 1999. After money was discovered missing from the clerk's office, Fagan was indicted for embezzling the missing money. Specifically, she was indicted for embezzling money on three separate occasions: February 19, June 16 and 19, 1999. Throughout 1999, Fagan worked with two other deputy clerks who also received money, issued receipts and made deposits. The State's case was based on circumstantial evidence.

881 So.2d at 853.

¶ 3. On appeal, Fagan raised five issues: (1) insufficiency of evidence; (2) the prosecution's improper questioning regarding witnesses' willingness to take polygraph examinations; (3) the prosecution's use of documents that were not disclosed in discovery; (4) the prosecution's introduction of other crimes; and, (5) the trial court's failure to grant a new trial based on newly discovered evidence. The Court of Appeals found no error and affirmed the judgment of the circuit court.

¶ 4. Although the Court of Appeals' plurality agreed that the case was entirely circumstantial, it found a "common thread" of evidence pointing to Fagan, including her initials on the computer-generated receipts for the monies in question; testimony that she had been the clerk to receive the money; and, testimony that Fagan was the only deputy clerk who knew how to backdate receipts in the computer.[1]Id. at 853. As to the issue regarding the polygraph examination, a sharply-divided court held that the prosecution's comments, remarks and continuing line of questioning regarding the polygraph examination, made over Fagan's sustained objections, was not an attempt to circumvent the judge's ruling, but was merely an attempt to word his question so as to avoid a hearsay objection. The Court of Appeals also stated that the references to the polygraph examinations, under these facts, was not enough to entitle Fagan to a new trial.

¶ 5. In a dissenting opinion, Presiding Judge Southwick, joined by Chief Judge McMillin and Judges Chandler and Griffis, stressed that the repeated references to the polygraph examinations were very important in this case based entirely on circumstantial evidence, with the undisputed facts revealing that all of the deputy clerks had unrestricted access to the money.[2] Presiding Judge Southwick noted that the remarks and questions about the other two clerks volunteering to take a polygraph examination "added inappropriate evidence onto the scale" of what was a closely balanced case. Id. at 859 (Southwick, P.J., dissenting).

*578 DISCUSSION

¶ 6. In the case sub judice, the Court of Appeals' plurality held that the prosecutor's references to polygraph examinations and to the cooperation of other possible suspects were inadvertent and insignificant. In response, Fagan asserts that the repeated remarks made by the prosecutor regarding the other clerks' willingness to take the polygraph examination is reversible error pursuant to Weatherspoon v. State, 732 So.2d 158 (Miss.1999). Less than one month prior to trial, the trial judge entered an order granting Fagan's motion in limine regarding polygraph evidence. Specifically, the trial court's order stated, inter alia:

[T]hat the prosecution and all of its witnesses are limited and prohibited from making any reference, statement or insinuation concerning the taking or not taking of any polygraph examination or any results thereof.

However, notwithstanding the trial court's pre-trial order prohibiting evidence concerning polygraph examinations, and notwithstanding repeated defense objections which were sustained by the trial court, the prosecutor, in a line of questioning regarding the other clerks' willingness to cooperate with the investigation, made several references to polygraph examinations. The State's key witness was Earl Smith, a special agent with the Department of Audit for the Mississippi State Auditor's Office. During the redirect examination of Agent Smith in the State's case-in-chief, the following testimony was elicited:

Q. Well, there are two other clerks in the office; is that right?
A. That's correct.
Q. And did your investigation not eliminate the two of them?
BY MR. JACOB: We object to leading and especially in light of the witness' prior answer.
BY THE COURT: Sustained for leading.
Q. (Continuing): What did your investigation reveal about the other two ladies?
MR. JACOB: We object to hearsay now.
BY THE COURT: All right, I'm going to sustained [sic] that counsel.
Q. (Continuing): I don't want anything they told you. What did your investigation reveal about whether the two of them committed this crime?
BY MR. JACOB: Object to hearsay.
BY THE COURT: Well, I'm going to sustain it.
Q. (Continuing): I'm not talking about anything they said to you. In your investigation, your audit, did it reveal their involvement in this?
BY MR. JACOB: Object to hearsay —
BY THE COURT: Well, your question is does he have an opinion of whether the other two are guilty?
BY MR. MITCHELL: No, sir, what did his investigation show?
BY THE COURT: Well, I'm going to sustain the objection.
Q. (Continuing by Mr. Mitchell): Okay, let's go through them one by one. What did you do to rule out the other two Clerks?
BY MR. JACOB: We object to this, your Honor. It is improper redirect, and it's hearsay.
BY THE COURT: Objection is overruled. I think he can answer that question.
Q. (Contin

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