IN THE SUPREME COURT OF MISSISSIPPI

NO. 2001-CT-01336-SCT

MARY LYNN FAGAN

v.

STATE OF MISSISSIPPI

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 08/23/2001

TRIAL JUDGE: HON. LARRY EUGENE ROBERTS

COURT FROM WHICH APPEALED: CLARKE COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: WILLIAM B. JACOB

JOSEPH A. KIERONSKI, JR.

DANIEL P. SELF, JR.

ATTORNEYS FOR APPELLEE:

DISTRICT ATTORNEY: OFFICE OF THE ATTORNEY GENERAL

BY: SCOTT STUART

E. J. (BILBO) MITCHELL

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REVERSED AND REMANDED - 12/16/2004

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

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 Appea ls, which, in a 5-5 decision, affirmed the circuit court’s judgment of conviction.

Fagan v. State

, 881 So.2d 851 (Miss. 2003). Faga n filed a petition for writ of certiorari,2

asserting erro rs 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 c onsider the issue involving repeated references to a polygraph

examination. Finding that these repeated references to a polygraph examination were

prejudicial in this close, circumstantial evidence case and, thus, deprived Fagan of a fair trial,

we reverse the judgments of the Court of Appeals and the C larke 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 dep u ty 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 th ree separate

occasions: Feb ruary 19, June 16 and 19, 1999. Throughout 1999, Fagan worked

with two other d eputy 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) insuffici ency of evidence; (2) the prosecution’s

improper questioning regarding witnesses’ willingness to take poly graph 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 t rial court’s failure to grant a new trial based on

newly discovered evidence. The Court of Appeals fo und 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 initials1 It is undisputed that the two other deputy clerks had access to a common cash drawer and that

placing the funds in the drawer, preparing deposit slips, making bank deposits and preparing computergenerated reports regarding these transactions were shared duties without safeguards or restri ctions

concerning the common cash receptacle.

2 Then-Presiding Judge King was the fifth dissenter; however, he did not join Presiding Judge

Southwick’s dissent, but instead dissented without opinion.

3 on the computer-generated re c eipts for the monies in question; testimony that she had been

the clerk to receive the money; and, testimony that Fagan was th e 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 comment s, 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 refe rences 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, jo ined 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

mo ney. 2 Presiding Judge Southwick noted that the remarks and questions about the other two

clerks volunteering to take a polygraph examinatio n “added inappropriate evidence onto the

scale” of what was a closely balanced case. Id. at 859 (Southwick, P.J., dissenting).

DISCUSSION

¶6. In the case sub judice, the Court of Appeals’ plurality held that the prosecutor’s4

references to polygraph ex aminations 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

on e 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 lim ited 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 examinat

ions, and notwithstanding repeated defense objections which were sustained

by the trial court, the prosecutor, in a line of questioning regarding the other c lerks’

willingness to cooperate with the investigation, made s everal 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 lig ht 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.5

Q. (Continuing): I'm not talking about anything they said to y ou. 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 h e 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, l et'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. (Continuing) What was the first thing you did?

A. Okay, the first thing I did was I went in and looked at the receipts, compared

those with daily reports. I secured bank records a nd looked at such things as who

made deposits, who recei pted for money. We interviewed each clerk. The other

two clerks or all of the clerks were provide d with the opportunity to take a

polygraph--

BY MR. JACOB: Your Honor, we object.

BY THE COURT: Sustained.

A. (Mr. Smith): We--

Q. No results--you can't say any results of a polygraph--

BY MR. JACOB: May we approach--

Q. The question I have--

BY THE COURT: At the next break, you may--objection is sustained.

Q. (Co ntinuing by Mr. Mitchell): The next question I have is did the other two

clerks agree to that?

A. Yes–

BY MR. JACOB: We object.

Q. All right. So, they cooperated--

BY THE COURT: Wait just a minute, counsel.

BY MR. MITCHELL: All right.

BY THE C OURT: You have an objection to what, questioning the other two

clerks?

BY MR. JACOB: May we approach?

BY MR. M ITCHELL: The question wasn't he asked them to take a polygraph; the

question is just did they agree to do that.

BY THE COURT: Right, and your objection is sustained. It is not admissible or

relevant.

Q. (Continuing): All right, did the two clerks cooperate in every way you asked

them to cooperate?

A. Yes, they did--

BY MR. JACOB: We object to this, your Honor, es pecially in light of the prior6

statement, the prior question.

BY THE COURT: Well, over ruled as to that particular objection, about

cooperation during his investigation.

Q. (Continuing): They did cooperate?

A. Yes, they did.

Q. Okay. Did they refuse to do anything you asked them to do to help with the

investigation?

BY MR. JACOB: Object to leading.

BY THE COURT: All right, rephrase it. Sustained. You're suggesting the answer.

Q. (Continuing): What if anything did they do--did they fail to cooperate with

you?

A. Nothing.

¶7. Agent Smith testified that each c lerk was given an opportunity to submit to a polygraph

examination. Although Fagan's immediate objection was sustained, the district attorney told

his witness, in front of the jury, not to refer to the results of th e polygraph examinations. At

this time, the judge denied defense counse l’s request to approach the bench. Although there

was an objection by defense counsel, Agent Smith further testified that the clerks agreed to

submit to a polygraph examination.

¶8. After this exchange, the trial judge offered to admonish the jury:

If you want me to admonish t he Jury and unring the rung bell as you say, I'll be

more than happy to do that and then question the Jury whether they will follow

the Court's instructions to disregar d any questions or reference to any possible

polygraph examination by anybody in this case, and then make a rul ing depending

on how they respond, or would you rather just leave it alone because I'm

convinced as of right now t hat that inference or reference in this trial is not

serious enough

to justify the granting of a mistrial or result in some miscarriage

o f justice. It's relatively insignificant in the context of this trial in my opinion.

Fagan's counsel responded to the trial judge's offer by noting, “Your Honor, as to the choices

given, we have no choice at this time, but to not say anything further at thi s stage.” A procedural

default may not occur if the instruction would only serve to exacerbate the er ror. Vickery v.7

State , 535 So. 2d 1371, 1380 (Miss. 1988).

¶9. The Court of Appeals affirmed the judgment of the circuit court, opining that because

there was no testimony offered by the two clerks as to whether they took a polygraph

examination, no reversible error occurred. However, Presiding Judg e Southwick dissented,

stating:

Knowing that the other clerks had cooperated and Fagan had not, knowing that

each clerk was i

n a similar position to have made the conversion, and knowing

that there were some cre dibility choices to make that would lead to a guilty or

not guilty determination, the jury in reaching its verdict cannot reliably be said

to hav e been untainted by this unquestionably inappropriate injection of the

polygraph examination point. The “nature of the error and the circumstances

attendant to its disclosure” are what lead us to conclude that reversal is required.

Weatherspoon , 732 So.2d at 163.

Fagan , 881 So. 2d at 861 (Southwick, P.J., dissenting).

¶10. This Court has held that “any evidence pertaining to a witness’s offer to take a

polygraph, refusal to take a polygraph test, the fact that a witness took a polygraph test or the

results of a polygraph test is i nadmissible at trial by the State or by the defense.”

Weatherspoon v. State

, 732 So.2d at 163. Reversal is not automatic upon admission of such

evidence. Id. Instead, what is important is the “nature of the error and t he circumstances

attendant to its disclosure.” Id.

¶11. This case was based entirely upon circumstantial evidence; therefore, this Court must

give great weight to inferences. In reviewing the conviction, therefore, we must view all the

evidence, as well as all reasonable inferences which may be drawn from the evidence, in the

light most favorable to the State. Jackson v. State

, 815 So.2d 1196, 1202 (Miss. 2002). There8

was no direct eviden

ce linking Fagan to the conversion of funds. Therefore, when the State, in

violation of the trial court’s pre-trial order and over repe ated defense objections which were

sustained by the trial judge, elicited testimony from its key witness that the other suspects had

cooperated, leading the jury most definitely to infer that they had passed polygraph

examinations, the jury was thus allowed to consider inappropriate evidence in a case which was

closely balanced before such testimony was e licited. As in W eatherspoon

, the “nature of the

error and the circumstances attendant to its disclosure” lead us to conclude t hat reversal is

required in today’s case.

¶12. In so finding, we are keenly aware of the fact that the trial judge who was there on the

scene to obs erve the jurors’ reaction to the polygraph testimony concluded that its effect on

the jury was “relatively ins ignificant.” We acknowledge that the trial judge is in a much better

position to determine the effect of inadmissible testimony on the jury. Blocker v. State , 809

So.2d 640, 643 (Miss. 2002). Thus, while we afford great deference to our trial judges’

find ings on such matters, such deference is not unfettered. We are constrained to find as a

matt er of law, based on the record before us, that the learned trial judge in today’s case erred

in allowing the polygraph evidence. Stated differently, inasmuch as most of the inadmissible

evidence came in after the trial court had sustained the defense obj e ctions, the trial court erred

in not granting the defendant’s motion for a new trial based on this inadmissible evidence.

CONCLUSION

¶13. We find that Agent Earl Smith’s testimony regarding the po lygraph examination, and

the subsequent questions by the prosecutor in violat ion of the trial court’s pre-trial order and9

over repeated defense objectio ns which had been sustained by the trial judge, constituted

reversible error, thus, depriving Fagan of a fair trial. Therefore, 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.

¶14. REVERSED AND REMANDED.

WALLER AND COBB, P.JJ., GRAVES, DICKINSON AND RA N DOLPH, JJ.,

CONCUR. SMITH, C.J., AND EASLEY, J., DISSENT WITHOUT SEPARATE WRITTEN

OPINION. DIAZ, J., NOT PARTICIPATING.