Franklin v. State

For the Court:

This ease involves the slaying of a 61-year-old homeless man, which occurred in a field behind the Frost Top Restaurant in Greenville, Mississippi on Sunday, January 19, 1992. In connection with this killing, 13-year-old Roderick Franklin and 17-year-old special education student Glen Dale Jackson were indicted in the Washington County Circuit Court for murder and conspiracy to commit murder. Franklin and Jackson were acquitted of the murder charges, but were convicted of the crime of conspiracy to commit murder. They were sentenced to twenty years in prison, with five years suspended. On appeal, Franklin and Jackson raise one issue:

WHETHER THE TRIAL COURT ERRED BY REFUSING THE APPELLANTS’ REQUESTS FOR A DIRECTED VERDICT AND/OR JUDGMENT NOTWITHSTANDING THE VERDICT (JNOV)?

On Sunday afternoon, January 19, 1992, Roderick Franklin, Glen Dale Jackson, and three other teenagers decided to “mess with” a homeless man. The five youngsters, threw rocks at the victim and kicked him for five to seven minutes. During this time, Michael Moering, a high school senior and the oldest boy in the group, left. Moering returned a few minutes later with a gun; he shot the victim. Moering then pointed the gun at Franklin and another boy, because “he knew [they were] gon’ to tell it.” The subsequent autopsy revealed that the victim’s death was caused by a gunshot wound to the back of his head.

LEGAL ANALYSIS

WHETHER THE TRIAL COURT ERRED BY REFUSING THE APPELLANTS’ REQUESTS FOR A DIRECTED VERDICT AND/OR JUDGMENT NOTWITHSTANDING THE VERDICT (JNOV)?

Requests for a directed verdict and motions JNOV implicate the sufficiency of the evidence. The standard of review for the legal sufficiency of the evidence 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.

Wetz v. State, 503 So.2d 803, 808 (Miss.1987) (citations omitted).

The appellants argue that, although they may have conspired to commit assault, they did not conspire to commit murder. The law on conspiracy provides that:

For there to be a conspiracy, “there must be recognition on the part of the conspirators that they are entering into a common plan and knowingly intend to further its common purpose.” The conspiracy agreement need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts, and conduct of the alleged conspirators. Furthermore, the existence of a conspiracy, and a defendant’s membership in it, may be proved entirely by circumstantial evidence.

Nixon v. State, 533 So.2d 1078, 1092 (Miss.1987) (citations omitted); Mitchell v. State, 572 So.2d 865, 867 (Miss.1990).

“ ‘By its very nature, conspiracy is a joint or group offense requiring a concert of free will.’ ” Flanagan v. State, 605 So.2d 753, 757 (Miss.1992) (quoting Moore v. State, 290 So.2d 603, 604 (Miss.1974)). Furthermore, conspiracy requires the “union of the minds” of the conspirators. Id.

The only evidence of a conspiracy in this case is the fact that Franklin and Jackson went with the other boys to “mess with” the victim. This is insufficient evidence of conspiracy to commit murder. See Thomas v. State, 591 So.2d 837, 839 (Miss.1991). There is no evidence to indicate that either Franklin or Jackson recognized that, by “messing with” the victim, he had entered into a common plan to commit murder or that he knowingly intended to further the common purpose of that plan. See Johnson v. State, 642 So.2d 924, 928 (Miss.1994). There is no evidence of a “union of the minds” between the boy who pulled the trigger and the appellants. Accordingly, the judgment of conviction by the trial court is reversed and rendered in favor of the appellants. Roderick Franklin and Glen Dale Jackson are discharged on these charges of conspiracy to commit murder.

REVERSED AND RENDERED. RODERICK FRANKLIN AND GLEN DALE JACKSON ARE DISCHARGED.

DAN M. LEE, C.J., SULLIVAN, P.J., BANKS and McRAE, JJ., concur.

SMITH, J., dissents with separate written Opinion joined by JAMES L. ROBERTS, Jr. and MILLS, JJ.

MILLS, J., dissents with separate written Opinion joined by JAMES L. ROBERTS, Jr. and SMITH, JJ.

PITTMAN, J., not participating.

. Although the prosecutor did argue the "street” meaning of the term "mess with" to the trial judge, there was no evidence before the jury on this matter.