McGee v. State
| Docket Number: | 2001-KA-01686-COA Linked Case(s): 2001-CT-01686-SCT ; 2001-CT-01686-SCT ; 2001-KA-01686-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-11-2003 Opinion Author: Southwick, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wire fraud - Double jeopardy - Section 97-19-83(1) - Jury venire - Admission of prior indictment - Hearsay - Amendment of indictment - Section 99-7-5 - Other bad acts - M.R.E. 404(b) - Jury instructions - Sufficiency of evidence Judge(s) Concurring: McMillin, C.J., King, P.J., Bridges, Thomas, Lee, Myers, Chandler and Griffis, JJ. Concurs in Result Only: Irving, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 10-11-2001 Appealed from: Chickasaw County Circuit Court Judge: Henry L. Lackey Disposition: CONVICTION OF WIRE FRAUD AND SENTENCED TO FIVE YEAR TERM WITH MDOC AND $10,000 FINE AND $100 TO THE VICTIM'S COMPENSATION FUND. District Attorney: James M. Hood, III Case Number: OK-2001-18 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Jimmy McGee |
EDWARD D. LANCASTER |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wire fraud - Double jeopardy - Section 97-19-83(1) - Jury venire - Admission of prior indictment - Hearsay - Amendment of indictment - Section 99-7-5 - Other bad acts - M.R.E. 404(b) - Jury instructions - Sufficiency of evidence |
| Summary of the Facts: | Jimmy McGee was convicted of wire fraud and was sentenced to five years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Double jeopardy McGee argues he could not be convicted based on a false promise to make a future payment. Section 97-19-83(1), the mail fraud statute, prohibits certain actions taken for pecuniary advantage by means of false or fraudulent pretenses, representations, or promises. The statute reaches false promises and misrepresentations as to the future as well as other frauds involving money or property. McGee also argues that the dismissal of the false pretense indictment with prejudice barred the State from proceeding against him under the wire fraud statute because doing so violated double jeopardy. Double jeopardy does not protect a defendant against different prosecutions for different offenses. The wire fraud charge was a distinct offense, one which required proof of different elements than those of the false pretense charge which was dismissed. Issue 2: Jury venire McGee argues that the jury venire was improperly drawn from beyond the bounds of the Second Judicial District of Chickasaw County. Jury selection does not warrant reversal unless used in a manner which was fraudulent, unfair or deprived the defendant of due process. In this case, there is no hint of impropriety in the selection, impaneling, or deliberations of the jury, and no prejudice to McGee as a result. Issue 3: Admission of prior indictment McGee argues that the court erred in admitting evidence of a prior indictment in Alabama for larceny by deception. A defendant's character may be rebutted if the defendant's witness brings his character in issue on direct examination. The defense must be responsible for “opening the door” before the State is entitled to enter. Here, the State elicited the invitation. Although this was error, it is not reversible error since McGee suffered no prejudice as there was sufficient independent evidence to dilute the effect of the improper evidence regarding the Alabama charges. Issue 4: Hearsay McGee argues that one of the witnesses repeatedly offered testimony of out-of-court statements made by various representatives of McGee. Although there are instances of improper hearsay being admitted, the error is harmless. There is no hearsay issue as to testimony recounting what the defendant himself told the witness. Issue 5: Amendment of indictment McGee argues that the court erred in allowing the alteration of the date of the offense listed on the indictment from December 16, 1999, to November 11, 1999, in order to conform to the proof. Section 99-7-5 forgives indictments which are flawed for stating the time imperfectly of an offense, where the timing of such is not an essential element of the charge. Issue 6: Other bad acts McGee argues that the court improperly allowed the testimony of the two furniture salesmen who suffered similar losses to McGee, because the testimony of these other bad acts violated M.R.E. 404(b). Rule 404(b) permits evidence of other bad acts to be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The testimony of the witnesses demonstrated both a pattern of fraud by McGee and the methods of his scheme. Issue 7: Jury instructions McGee argues that the court erred in failing to grant two jury instructions. The first is a restatement of McGee's argument that the prosecution of the wire fraud indictment is an improper attempt to circumvent the prohibition against imprisonment for civil debt which has already been rejected. The second included a definition of fraud as conduct "which fails to match the reflection of moral uprightness of fundamental honesty, fair play and right dealing" and that the telefaxing must be "in execution of the fraudulent scheme." To the extent there was something relevant in this instruction, it was covered elsewhere. Issue 8: Sufficiency of evidence Although McGee argues that the evidence was insufficient, the State's evidence was persuasive. |
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