IN THE SUPREME COURT OF MISSISSIPPI

NO. 98-KA-00251-SCT

SCOTT MORGAN a/k/a

GLENN SCOTT MORGAN

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 01/23/1998

TRIAL JUDGE: HON. WILLIAM F. COLEMAN

COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: CYNTHIA HEWES SPEETJENS

THOMAS E. ROYALS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: BILLY L. GORE

DISTRICT ATTORNEY: E. LINDSAY CARTER

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REVERSED AND REMANDED - 8/19/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 09/09/99

BEFORE PRATHER, C.J., WALLER AND COBB, JJ.

WALLER, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. Five men were named in a Forrest County conspiracy indictment. Appellant Scott

Morgan, a Hattiesburg policeman, and two lawyers were charged with conspiring to

defraud the conservatorship of Jack Diamond, a Picayune businessman who had

become incapacitated as a result of a series of strokes. The indictment also named
Charles Morgan (Appellant's father) and former Chancellor William Robert Taylor, both

deceased, as unindicted co-conspirators. After a severance and a change of venue to

Harrison County, a jury trial was held before Special Circuit Judge William F. Coleman.

Morgan was convicted of conspiracy and was sentenced to five years in the custody of

the Mississippi Department of Corrections with two years suspended, three years to

serve, and five years of supervised probation. Morgan raises seven issues on appeal:

I. The indictment was insufficient to inform Morgan of the crime with

which he was charged.

II. The trial court erred in granting Jury Instruction 13.

III. It was error to allow the prosecution to cross-examine Morgan on

allegations that he had been accused of police brutality.

IV. The trial court erred in refusing to grant a continuance.

V. The trial court erred in failing to grant a JNOV because the evidence

was not sufficient to support a conviction for conspiracy.

VI. The trial court erred in admitting out-of-court statements made by

alleged co-conspirators.

VII. The trial court erred in allowing the jury to hear evidence of Judge

Taylor's suicide.

STATEMENT OF FACTS

¶2. Jack Diamond owned and operated Allied Heirlooms, a profitable business in

Picayune, Mississippi. Allied Heirlooms' primary business was cleaning and preserving

wedding dresses. Diamond suffered a series of strokes in 1993 and 1994 which left

him unable to care for himself or attend to his estate. A conservatorship for Diamond

was established in 1994.

¶3. A series of conservators, guardians ad litem, attorneys, and other individuals

engaged by the conservatorship came and went before Scott Morgan ("Morgan")

became involved in the conservatorship. In December of 1995, Chancellor Taylor

appointed his long-time friend Charles Morgan, Scott Morgan's father, as Successor

Conservator for Jack Diamond. Charles Morgan initially was paid on an hourly basis

for his services as conservator. Eventually he charged a flat fee of $7,500 per month.

Shortly after Charles Morgan became Diamond's conservator, Morgan was named

head of security for the conservatorship. He was paid $2,000 for an initial security
survey, and later he was paid $3,000 per month as chief of security for the

conservatorship. The conservatorship paid these sums, and the payments were

approved by Chancellor Taylor.

¶4. Charles Morgan died on August 13, 1996. Judge Taylor and Greg Alston, the

attorney for the conservatorship, approached Morgan at his father's funeral and told

him that he was to be the new conservator. Morgan was appointed conservator on

August 15, 1996. Morgan began receiving $7,500 per month as compensation for his

duties as conservator. Morgan continued to work full-time as a Hattiesburg police

officer where he made approximately $31,000 a year. Morgan and Alston agreed to

pay the entire $7,500 monthly payment for August, 1996, to Joanne Morgan, Morgan's

mother, even though Charles Morgan had only served through August 13, the date of

his death. Alston and Morgan also agreed that Morgan would receive $7,500 for

August even though he didn't begin to serve until August 15. These payments were

approved by Judge Taylor.

¶5. During his tenure as chief of security for the conservatorship, Morgan hired friends

and relatives, including several fellow Hattiesburg police officers, as security officers

for Diamond and Allied Heirlooms in Picayune. He paid them $25 an hour even though

the prevailing rate for similar work was $5.35 to $12 an hour. Morgan paid $6,647.60

to Jennifer Morgan, his wife, for security work performed from February to July of

1996. He paid $15,802.40 to Mike Dewease, his brother-in-law, over the time period

from February to October, 1996. After Morgan replaced his father as conservator, he

hired his brother, Chuck Morgan, to be the new chief of security. Chuck Morgan

received $3,000 per month as security chief even though he worked offshore as a

helicopter pilot, had no law enforcement experience, and had only two security officers

to supervise. All in all, the Morgans spent over $65,000 in conservatorship funds on

security. Testimony at trial revealed that there were conflicting opinions on the need

for any security at all.

¶6. The prosecution showed that many conservatorship checks were written before the

expenditures had been approved by the Chancellor and that Charles Morgan often

withheld large amounts of cash from the conservator's paychecks he deposited into his

personal account. The State attempted to infer that the cash withheld by Charles

Morgan was paid to Judge Taylor, who had once paid for a Rolex watch with $10,900

in cash taken out of a paper bag.

¶7. Jay Jernigan served as attorney for the conservatorship in 1994 and 1995. On

several occasions during that period of time Judge Taylor asked Jernigan to pad his

legal bills and return part of the excess to him. On four or five occasions, Judge

Taylor told Jernigan that he needed $3,000. Jernigan concluded that this was an

attempted solicitation of a kickback by the judge. There was no proof that the judge
ever actually received any payment.

¶8. Gene Combs testified that he approached Judge Taylor about purchasing Allied

Heirlooms. The judge told Combs that if he allowed Combs to purchase the business,

one-third of the business would have to be reserved for the judge personally. The

judge also requested a political contribution. Combs also testified that Alston had told

him that the judge would retain a third of the purchase price if the business was sold.

¶9. Scott Morgan testified in his own defense. He stated that he had not entered any

conspiracy to defraud the conservatorship, that he had never paid kickbacks to the

judge, and that the expenditures he had made as conservator were reasonable.

LAW

I. Was the indictment sufficient to inform Morgan of the charge against

him?

¶10. Morgan claims that the indictment against him was so vague and indefinite that it

did not fairly inform him of the crime alleged against him. The indictment read:

 Beginning from on or about August 9, 1993 and continuing through November,

1996, in Forrest County, Mississippi, Gregory Alston, Scott Morgan, and Ike

Farris, the defendants herein, did willfully, knowingly, unlawfully and feloniously

conspire and agree together and with the late Chancery Judge William Robert

Taylor, the late Charles Morgan, and with persons known and unknown to the

Grand Jury, to cheat and defraud the conservatorship of Jack Diamond out of

property and money in excess of $250.00, by means which are in themselves

criminal, or which, if executed, would amount to a cheat, or to obtain money or

any other property or thing by false pretense, in violation of MCA 97-1-1(d), as

amended.

*****

 The scheme consisted of obtaining payment, payment for fees and services

which were not reasonable, necessary, or earned, including, but not limited to

attorneys fees, conservator fees, and fees for the Guardian ad litem. The scheme

further included payments to Scott Morgan, his friends, family and relatives for

services, including but not limited to security services, which were not reasonable,

necessary or earned. The scheme also included demands by Judge Taylor for

payment of money to him for which he was not entitled nor authorized by law to

receive.
 That all of the above conduct is in violation of MCA 97-1-1(d), as amended,

MCA 97-1-1(f) and is against the peace and dignity of the State of Mississippi.

¶11. The accused "has a constitutional right to be informed of the nature and material

elements of the accusation filed against him." Burchfield v. State, 277 So. 2d 623,

625 (Miss. 1973). In order to be sufficient, "the indictment must contain the essential

elements of the crime with which the accused is charged." Hennington v. State, 702

So. 2d 403, 407 (Miss. 1997). Rule 7.06 of the Mississippi Uniform Rules of Circuit

and County Court Practice requires that an indictment contain "a plain, concise, and

definite written statement of the essential facts constituting the offense charged and

shall fully notify the defendant of the nature and cause of the accusation." King v.

State, 580 So. 2d 1182, 1185 (Miss. 1991). Nothing more is required. Additionally,

"an indictment which tracks the statutory language is generally sufficient to inform the

accused of the charge against him." Cantrell v. State, 507 So. 2d 325, 329 (Miss.

1987).

¶12. The indictment in this case fairly placed Morgan on notice that he was charged with

conspiring with others to defraud the conservatorship of Jack Diamond. The indictment

included the period of time involved, named four of the known alleged co-conspirators,

and described the fraud as obtaining unreasonable or unearned payments or fees from

the conservatorship and charging the conservatorship for unnecessary security. It

tracked the language of Miss. Code Ann. § 97-1-1 (1994). The indictment sufficiently

notified Morgan of the charge against him and enabled him to prepare a defense. This

issue is without merit.

II. Did the trial court err in granting Jury Instruction 13?

¶13. Morgan claims that granting Jury Instruction 13 was error because it arguably failed

to require jurors to find that Morgan was a member of the conspiracy and also failed to

require the jurors to be unanimous as to the identity of the person or persons with whom

Morgan conspired. Morgan also argues that the instruction failed to conform to the

indictment in that the indictment alleged that Morgan conspired with Taylor, Alston,

Farris, Charles Morgan, and other unknown persons, while the instruction allowed the

jury to find that Morgan conspired with any one of the alleged co-conspirators by using

the word "or." Jury Instruction 13 read as follows:

 A conspiracy is an agreement or understanding between two or more people to

commit a crime. The crime of conspiracy is complete when the agreement is

made. Therefore, the crime of conspiracy is separate and distinct from the crime

contemplated by the conspiracy. Whether or not the conspirators accomplished
the crime they conspired to commit is immaterial to the question of guilt or

innocence.

 In establishing a conspiracy, the State is not required to prove an expressed or

formal agreement between the conspirators to commit a crime. It is sufficient for

the State to prove, beyond a reasonable doubt, from all of the facts and

circumstances of this case, together with the acts of the parties, that Judge

William Robert Taylor, and/or Charles Morgan, and/or Gregory Alston, and/or

Scott Morgan, and/or Ike Farris knowingly and voluntarily entered into a common

plan with the understood purpose to commit a crime. Express language or specific

words are not required to prove involvement in a conspiracy

 If a conspiracy has been shown to exist beyond a reasonable doubt and to the

exclusion of every other reasonable hypothesis consistent with innocence, then

any reasonably foreseeable act of a conspirator in furtherance of the conspiracy is

considered by law to be the act of any other member of the conspiracy. Each

conspirator is responsible for the reasonably foreseeable acts of any other

member of the conspiracy done in furtherance of the conspiracy. Furthermore,

one may become a member of a conspiracy without full knowledge of all of the

details of the unlawful scheme or the names and identities of all of the other

alleged conspirators. A person may be held as a conspirator regardless of the

point in time in which he enters it, so long as he enters it with the intent to further

its objects during the life of the conspiracy.

¶14. Morgan argues that the wording of the instruction allowed a conviction of Morgan

if the jury believed that any other two of the alleged co-conspirators agreed to commit

a crime. Alternatively, he claims that the instruction did not require unanimity in the

jurors' verdict in that some could have believed that Morgan conspired with one other

actor and other jurors could have believed that he conspired with someone else, but

the verdict would be the same even though the jury potentially could be agreeing on a

different conspiracy. Morgan also claims that the variance between the indictment and

Instruction 13 is reversible error.

¶15. Defense counsel objected to Instruction 13 on the grounds that it was misleading

and that it did not require jurors to find that Morgan was actually a part of the

conspiracy in order to convict. Morgan did not object to the question of the unanimity

of the jury's verdict or to the variance between the instruction and the indictment. In

order to preserve a jury instruction issue on appeal, a party must make a specific

objection to the proposed instruction in order to allow the lower court to consider the

issue. Watson v. State, 483 So. 2d 1326, 1329 (Miss. 1986). Further, "[a]n objection

on one or more specific grounds constitutes a waiver of all other grounds." Stringer

v. State, 279 So. 2d 156, 158 (Miss. 1973). See also McGarrh v. State, 249 Miss.
247, 276, 148 So. 2d 494, 506 (1963) (objection cannot be enlarged in reviewing court

to embrace omission not complained of at trial). Whether the instruction required a

unanimous verdict and whether Instruction 13 fatally varied from the indictment are

procedurally barred and will not be considered here.

¶16. We do consider whether Instruction 13 was confusing in that it arguably allowed

the jury to find that Taylor and Alston conspired together and that Morgan was guilty

without any finding that he joined in the conspiracy. Individual jury instructions are not

to be reviewed in isolation. The instructions are read as a whole in order to determine if

the jury was properly instructed. Willie v. State, 585 So. 2d 660, 680 (Miss. 1991).

This Court must consider the other instructions given this jury. Jury Instruction 10 read

as follows:

 You are instructed that to establish a conspiracy, the State is not required to

prove that two or more persons entered into a solemn compact, orally or in

writing, stating that they have formed a conspiracy to violate the law, setting forth

the details of the plan, the means by which the unlawful plan is to be carried out,

or the specific part to be played by each conspirator. It is sufficient to show the

existence of a conspiracy if the State proves beyond a reasonable doubt and to

the exclusion of every other reasonable hypothesis consistent with innocence

from the evidence in this case that two or more persons, one of which was the

defendant, Scott Morgan, in any manner or through any contrivance, express or

inferred, voluntarily came to a common understanding to violate the law as set

forth herein and express language or specific words are not required to prove

involvement in a conspiracy.

 Thus, if you believe from the evidence in this case, beyond a reasonable doubt

and to the exclusion of every other hypothesis consistent with innocence, that on

August 9, 1993, through November 1996, an agreement, express or implied,

existed between Scott Morgan and one or more persons to commit a crime,

namely to cheat and defraud Jack Diamond out of property in excess of $250.00

by any means which are in themselves criminal, or which, if executed, would

amount to a cheat, or to obtain money or any other property or thing by false

pretense, then it is your sworn duty to find the defendant, Scott Morgan, guilty as

charged.

(Emphasis added.) Additionally, Instruction 4 required the jury to find ". . . that Scott

Morgan is guilty of having taken part in a criminal conspiracy to defraud the Jack

Diamond conservatorship." Finally, Instruction 11 stated that in order to return a guilty

verdict, the jury must be convinced beyond a reasonable doubt that "Scott Morgan

knew the unlawful purpose of the agreement and joined in it wilfully, that is, with the
intent to further the purpose of the conspiracy."

¶17. Considered in totality, the instructions properly instructed the jury as to the law in

this case. While Instruction 13 by itself arguably was misleading, when considered in

conjunction with the rest of the instructions, there is no question that the jury was

properly instructed. Morgan's contention that Instruction 13 was misleading in that the

jury could have been misled that Morgan could be found guilty if two other parties

conspired to defraud Diamond is without merit.

III. Did the trial court err in allowing cross examination of Morgan on

allegations that he had been accused of police brutality?

¶18. Morgan argues that reversal is required because the trial judge allowed the State to

question him about allegations of police brutality. Morgan took the stand in his defense

and testified on direct examination as follows:

Q. Did you win any awards or commendations while you were a police officer

with the Hattiesburg Police Department?

A. Yes, sir. I was awarded officer of the year two separate times, and I was

awarded a medal of honor by the Police Department for service.

Q. Did you ever have your character or integrity questioned while you were

a police officer?

A. No, sir.

(Emphasis added.)

¶19. Former Hattiesburg police officer Sherman Howell also testified for the defense.

On direct examination he was asked the following question:

Q. And at any time during your entire tenure in law enforcement, up to this very

minute, have you ever know (sic) of any situation in which Scott Morgan's

integrity with respect to that cash or anything else in his law enforcement career

when his integrity was ever questioned in any way?

A. No, ma'am.

¶20. On cross examination, the State elicited the following testimony from Morgan:
Q. Scott, you testified that you were officer of the year twice and received a

medal of valor and all of this in your capacity as a police officer; is that right?

A. That's right.

Q. You had some serious problems as a police officer, too, didn't you?

A. How is that?

Q. Brutality suits?

A. Yes, sir, I did.

Q. How many?

A. I am not sure. I was cleared - -

¶21. In response to the defense's objection, the trial judge responded, "I think you

opened it up." The trial judge allowed only the limited questioning about the existence

of complaints lodged against Morgan. He refused to allow the State to delve into the

details of those allegations.

¶22. Rule 404 of the Mississippi Rules of Evidence restricts the use of character

evidence. Under the Rule, a defendant is allowed to introduce evidence of his own

good character. After the defendant's character is placed in issue, Rule 404(a)(1)

allows the prosecution to impeach the defendant's credibility by rebutting his

assertions of good character. Quinn v. State, 479 So. 2d 706, 708 (Miss. 1985).

When the accused raises the issue of his character, the prosecution may then offer

evidence of the accused's bad character. Rowe v. State, 562 So. 2d 121, 123 (Miss.

1990). Further, "[a] defendant's character is put in issue when he states that he has a

good character or a good record, or when he otherwise offers evidence of good

character." Id. (citing 1 Wharton's Criminal Evidence § 169 (1985)).

¶23. This Court has held that "[w]here an accused, on direct examination, seeks to

exculpate himself, such testimony is subject to normal impeachment via crossexamination, and this is so even though it would bring out that the accused may have

committed another crime." Stewart v. State, 596 So. 2d 851, 853 (Miss. 1992). By

testifying that he was a decorated police officer and by stating that his character and

integrity had never been questioned, Morgan placed his performance as a police officer

in question. It would be unfair to allow Morgan to testify to his unquestioned character

and not allow the State to impeach Morgan's assertions. Lester v. State, 692 So. 2d

755, 780 (Miss. 1997), overruled on other grounds, Weatherspoon v. State, 732 So.

2d 158 (Miss. 1999). Quinn v. State, 479 So. 2d at 708-09. This issue is without

merit.
IV. Did the trial court err in refusing to grant a continuance?

¶24. Prior to trial, Morgan requested a continuance of the criminal proceedings until

the Chancery Court could rule on the final conservatorship accounting he had filed

shortly before the criminal trial began. Morgan sought a determination in the Chancery

Court that the fees and expenses he received from conservatorship funds were not

excessive. He now claims that refusing to grant that continuance prejudiced his

defense and is reversible error.

¶25. In order to preserve this issue for appeal, Morgan was required to include the

denial of the continuance in his motion for new trial. Pool v. State, 483 So. 2d 331,

336 (Miss. 1986). Morgan's motion for new trial and for judgment notwithstanding the

verdict made no mention of the denial of a continuance. Because the issue was not

properly preserved, and because the trial court did not have the opportunity to rule on

this claimed error, this issue is not properly before this Court and is procedurally

barred.

¶26. Notwithstanding the procedural prohibition, this claim fails on the merits. Trial

judges have wide latitude in deciding whether to grant continuances, and that decision is

left to the sound discretion of the trial judge. Lambert v. State, 654 So. 2d 17, 22

(Miss. 1995). Denial of a continuance is not reversible unless manifest injustice appears

to have resulted from the denial. Hatcher v. Fleeman, 617 So. 2d 634, 639 (Miss.

1993). The trial judge's refusal to grant a continuance was not an abuse of discretion,

nor is there any indication of manifest injustice resulting from the denial of a

continuance. This issue is without merit.

V. Should the trial court have granted a JNOV because the weight and

sufficiency of the evidence did not support a conviction?

¶27. In order to prove a conspiracy under Miss. Code Ann. § 97-1-1, the State was

required to show that two or more persons agreed to commit a crime or agreed to

accomplish an unlawful purpose. Johnson v. State, 642 So. 2d 924, 928 (Miss. 1994).

The State had the burden of showing beyond a reasonable doubt that Scott Morgan

agreed with at least one of the other alleged co-conspirators to defraud the

conservatorship of Jack Diamond. This Court has stated that "it is difficult to define

fraud. In its commission there are devices 'almost infinite in variety.' As it involves

breach of duty, trust, or confidence, it includes all acts, omissions, or concealments

by which another is injured, or an undue or unconscientious advantage is taken."

Cumbest v. State, 456 So. 2d 209, 217 (Miss. 1984) (quoting Smith v. State, 107

Miss. 486, 496, 65 So. 564, 567 (1914)).
¶28. The State was required to prove that Morgan knew that he was entering a

common plan and intended to further its common purpose. Mitchell v. State, 572 So.

2d 865, 867 (Miss. 1990). The prosecution was not required to show that the parties

entered an express or formal agreement. A conspiracy can be proven by the acts and

conduct of the alleged conspirators and can be inferred from the circumstances.

Johnson v. State, 642 So. 2d at 928; Mitchell v. State, 572 So. 2d at 867; Rose v.

State, 556 So. 2d 728, 735 (Miss. 1990). Finally, once the existence of a conspiracy is

shown, only slight evidence is required to connect a particular defendant with the

conspiracy. United States v. James, 528 F.2d 999, 1012 (5th Cir.1976).

¶29. The standard for reviewing the denial of a motion for JNOV is well-settled:

[W]e must, with respect to each element of the offense, consider all of the

evidence-not just the evidence which supports the case for the prosecution- in the

light most favorable to the verdict. The credible evidence which is consistent with

the guilt must be accepted as true. The prosecution must be given the benefit of

all favorable inferences that may reasonably be drawn from the evidence. Matters

regarding the weight and credibility to be accorded the evidence are to be resolved

by the jury. We may reverse only where, with respect to one or more of the

elements of the offense charged, the evidence so considered is such that

reasonable and fair-minded jurors could only find the accused not guilty.

Franklin v. State, 676 So. 2d 287, 288 (Miss. 1996) (quoting Wetz v. State, 503 So.

2d 803, 808 (Miss. 1987).

¶30. The evidence in this case established that Morgan and others received what

certainly appeared to be an excessive and unreasonable amount of money from the

conservatorship of Jack Diamond. The double payment of $7,500 for the month of

August is particularly indefensible. The proof showed that Morgan's decisions with

regard to expenditures for security were not warranted. The jury clearly could have

found that paying family and friends $25 per hour for questionable security was not

justified. Morgan's decision to pay his brother, who worked off-shore, $3,000 per

month to supervise two part-time security officers is equally suspect. From the facts

established at trial and reasonable inferences therefrom, a reasonable jury could have

found that there had been a breach of trust or confidence in which Morgan injured or

took advantage of the conservatorship of Jack Diamond. Thus, there was sufficient

proof that a fraud was committed by Scott Morgan.

¶31. The State is also entitled to reasonable inferences with regard to the existence of a

conspiratorial agreement between Morgan and another person. This fraud was

accomplished through otherwise normal conservatorship proceedings. An attorney
drafted and submitted petitions and orders for Morgan's unjustifiable expenditures. A

chancellor placed his stamp of approval and the appearance of legality on these

conservatorship expenditures by signing the orders. Given the close personal

relationship between Chancellor Taylor and Charles Morgan, the circumstances under

which Morgan became the conservator, and the fact that Chancellor Taylor and Alston

obviously were involved with approving the payments, a reasonable inference can be

made that Morgan entered an agreement with Taylor and Alston to benefit themselves

at the expense of the Diamond conservatorship. The evidence at trial was sufficient to

prove beyond a reasonable doubt that Morgan was guilty of conspiring to defraud the

conservatorship. This issue is without merit.

VI. Did the trial court err in allowing into evidence out-of-court statements

of alleged co-conspirators?

¶32. Morgan complains that the admission into evidence of out-of-court statements by

Judge Taylor and Greg Alston were irrelevant and highly prejudicial to the defense and

that their admission was reversible error. Alston was indicted as a co-conspirator.

Taylor was named in the indictment as a co-conspirator but was not indicted.

¶33. The prosecution was allowed to elicit testimony from Jay Jernigan, the former

attorney for the conservatorship, that on four or five occasions in 1995, Judge Taylor

had requested that Jernigan pad his legal bills and pay part of the excess fee to the

judge. On several occasions, Judge Taylor told Jernigan that he needed $3,000 and

implied that Jernigan should overcharge the conservatorship to pay the kickback.

Prosecution witness Gene Combs was allowed to testify that when he approached

Judge Taylor about purchasing Allied Heirlooms, the judge told him that one-third of

the business would have to be set aside for himself (the judge). Combs also testified

that Greg Alston told him that a third of the sale price of the business would have to

be retained for Judge Taylor.

¶34. Morgan objected to the admission of the out-of-court statements. The trial judge's

basis for allowing the statements is unclear from the record.

¶35. A statement soliciting a bribe is not hearsay. United States v. Moss, 9 F.3d 543,

550 (6th Cir. 1993); United States v. Villarreal, 764 F.2d 1048, 1050 n.2 (5th Cir.

1985). Judge Taylor's bribe solicitation was not offered to prove the truth of the matter

asserted. The testimony was offered to prove that a solicitation was made, not that

Judge Taylor actually needed $3,000. The "verbal act" of the solicitation is not

hearsay. Even though they are not hearsay, the solicitation attempts still must be

relevant to be admissible. Even if relevant, Mississippi Rule of Evidence 403 prohibits

the introduction of evidence if the probative value of the testimony is substantially
outweighed by its prejudicial effect. Miss. R. Evid. 403.

¶36. Judge Taylor's statements to Jernigan in which he attempted to solicit a bribe

occurred in 1994 and 1995. None of the other four men named in the indictment had

become involved in the conservatorship at that point. Morgan did not become involved

until he was named head of security in January of 1996. However, the State put on no

proof that a conspiracy to defraud the conservatorship existed in 1994, and the State

failed to show any connection between the solicitation attempt at that point and

Morgan's later involvement. The only proof for that period of time was that Judge

Taylor was soliciting kickbacks. Because there was no showing of a conspiracy in

1994 when Judge Taylor's statements soliciting a kickback were made, and because

there was no showing of any connection between Morgan and the bribery attempt,

those statements were irrelevant and should not have been introduced.

¶37. Morgan also objected to the admission of Combs' testimony as to the statements

of Judge Taylor and Alston about the judge's intentions to retain one-third of the sale

price of the business was admissible under Rule 801(d)(2)(E) as statements of coconspirators. The record is not clear about when those statements were made.

However, it is clear that those statements were not made in the course and in

furtherance of the conspiracy between Morgan and others to defraud the

conservatorship. There is no relation between Judge Taylor's proposal to a potential

purchaser and the conspiracy between Morgan and others to defraud the Diamond

conservatorship by grossly charging excessive fees as discussed above. There was no

proof that Morgan had any part in Judge Taylor's proposed deal to sell the business,

and there is no indication that he could have profited in any way from it. The

statements with regard to Judge Taylor's intentions to keep a portion of the purchase

price of the business for himself were not admissible as co-conspirator's statements

against Morgan because it was not shown that the statements were in the course and in

furtherance of the conspiracy between Morgan and others.

¶38. The State also claims that these statements are admissible under Mississippi Rule

of Evidence 804(b). Rule 804(b) provides in part:

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the

declarant is unavailable as a witness:

*****

(3) Statement Against Interest. A statement which was at the time of its making so

far contrary to the declarant's pecuniary or proprietary interest, or so far tended to

subject him to civil or criminal liability, . . . that a reasonable man in his position

would not have made the statement unless he believed it to be true . . . .
Miss. Rule of Evid. 804(b).

¶39. Rule 804(b)(3) is only available when the declarant is unavailable. Judge Taylor,

who was long since dead, was clearly unavailable. A statement made by him may be

admissible if the statement "clearly and directly implicates the declarant himself in

criminal conduct." Williams v. State, 667 So. 2d 15, 19 (Miss. 1996) (quoting

United States v. Sarmiento-Perez, 633 F.2d 1092, 1101 (5th Cir. 1981)); see also

Ponthieux v. State, 532 So. 2d at 1246. The statements by Judge Taylor declaring his

intention to retain one-third of the purchase price of the business might meet the

requirements for admission under Rule 804(b)(3). However, since there has been no

credible evidence offered of any link between attempts by Judge Taylor to solicit a

kickback from potential buyers and the Morgan conspiracy to defraud the

conservatorship by charging unearned fees and collecting unreasonable amounts for

unnecessary security, those statements are not relevant to the Scott Morgan case.

¶40. There is no indication that Alston was not available as a witness. The fact that he

was indicted and might exercise his right against self-incrimination does not make him

unavailable. Slater v. State, 731 So. 2d 1115 (Miss. 1999). Because Alston was

available as a witness, the hearsay exception does not apply, and the statements

attributed to him were not admissible under Rule 804.

¶41. The testimony as to statements made by Judge Taylor and Alston was not

admissible. The evidence was highly prejudicial to Morgan and deprived him of a fair

trial. The admission of those statements is reversible error.

VII. Did the trial court err in allowing evidence of Judge Taylor's suicide?

¶42. Morgan made pretrial and continuing contemporaneous objections to evidence

that Judge Taylor had committed suicide. Morgan objected to the introduction of

Taylor's death certificate which listed the cause of death as suicide. Morgan argues

that evidence of the suicide was not relevant to the question of the existence of a

conspiracy, and even if relevant, the prejudicial effect of that evidence substantially

outweighed its probative value.

¶43. The State argued at trial and on appeal that the introduction of evidence of Judge

Taylor's suicide, including his death certificate, was not erroneous because the

indictment recited that Judge Taylor was deceased and the State was entitled, if not

required, to prove what was alleged in the indictment. This explanation would seem

more ingenuous if the State had also sought to introduce evidence, including a death

certificate, that Charles Morgan was dead as was also stated in the indictment. It can

be presumed that the State did not present evidence of Charles Morgan's death

because his death certificate did not state that he had died of an intentional drug
overdose. Clearly, the reason the State wanted to put this information before the jury

was to show Judge Taylor's guilty conscience and to have the jury transfer some Judge

Taylor's apparent guilt to other parties, including Scott Morgan.

¶44. This Court has held that evidence "to the effect that the codefendant, or a person

who is alleged to be a joint actor, committed suicide . . ., is prejudicial to the defendant

and should not be shown in the evidence . . . ." Craft v. State, 254 Miss. 413, 421, 181

So. 2d 140, 143 (1965). Mississippi Rule of Evidence 403 provides that otherwise

relevant evidence "may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice" to the defendant. The probative value of evidence that

Judge Taylor died by suicide is negligible at best. Its probative value was clearly

outweighed by the prejudicial effect of the jury hearing that one of the co-conspirators

had killed himself. Introduction of evidence of Judge Taylor's suicide is reversible

error.

CONCLUSION

¶45. Because prejudicial hearsay testimony and evidence of Judge Taylor's suicide

were erroneously allowed into evidence, the judgment of the trial court is reversed, and

this case is remanded to the Forrest County Circuit Court for a new trial.

¶46. REVERSED AND REMANDED.

PRATHER, C.J., BANKS, SMITH, MILLS AND COBB, JJ., CONCUR.

SULLIVAN AND PITTMAN, P.JJ., AND McRAE, J., NOT

PARTICIPATING.