                    IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2009-KA-00080-SCT


WILLIE L. WILLIAMS, JR.

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         11/17/2008
TRIAL JUDGE:                              HON. RICHARD A. SMITH
COURT FROM WHICH APPEALED:                SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF INDIGENT APPEALS
                                          BY: ERIN ELIZABETH PRIDGEN
                                               LESLIE S. LEE
                                          ROSHARWIN LEMOYNE WILLIAMS
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: W. GLENN WATTS
DISTRICT ATTORNEY:                        WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              REVERSED AND REMANDED - 04/15/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       KITCHENS, JUSTICE, FOR THE COURT:

¶1.    Following a jury trial, Willie L. Williams, Jr., was convicted of attempted armed

robbery and sentenced to fifteen years’ incarceration with ten years to serve. Finding that

the trial court erred by refusing a cautionary jury instruction on accomplice testimony, we

reverse and remand the case for a new trial.
                                            Facts

¶2.      Stephanie Cannon owned and operated Stephanie’s Discount Store in Ruleville,

Mississippi. On March 22, 2007, she was working in her store when a young man entered

and inquired about a certain brand of jeans. Moments later, another man, his face covered

with a white shirt, entered the store and pointed a handgun at her. Cannon immediately

grabbed her handgun and commenced shooting. Both men fled the store, and, in the process,

one dropped a firearm just inside the doorway. When one of the men came back to retrieve

the weapon, Cannon shot him. The wounded man ran across the street, leaving a trail of

blood.

¶3.      Cannon called the police and informed them that two men had attempted to rob her.

One of the responding officers followed the blood trail and found Terrence Young wounded

and lying on the ground behind a nearby house. Young was immediately transported to a

hospital. Both handguns wielded by the suspects were recovered by officers, along with a

white T-shirt and a blue T-shirt. Two holes had been cut in each shirt, which, according to

the testifying officer, appeared to be holes for eyes.

¶4.      Later that day, Montreal Veal went to the police station looking for his cousin,

Terrence Young. When questioned about the incident, Veal told police officers that Young

and Williams had attempted to rob Cannon’s store, but that he, Veal, was not involved. His

claim of innocence notwithstanding, Veal was arrested.




                                              2
¶5.    Williams also was questioned and arrested that day. Like Veal, he denied any

involvement, and told officers that Young and Veal were the real perpetrators.1

¶6.    A few days later, while still hospitalized, Young told the police that he, Montreal

Veal, and Willie Williams, Jr., had attempted to rob Cannon’s store. Young’s trial testimony,

though more detailed, was consistent with the statement he had given police. According to

Young, he and Veal went to Williams’s house on the morning of the robbery attempt after

Williams had called and invited them over. Young testified that, once they all had arrived,

Williams asked for Young’s handgun so he could rob Cannon’s store. Young testified that

the three men devised a plan whereby Veal would enter the store first and distract the clerk.

Next, Young and Williams would enter the store, their faces covered, with Williams carrying

the gun.

¶7.    Young testified that the robbery began as planned. According to Young, Veal entered

the store first while Young and Williams waited, their faces covered with T-shirts. Williams

entered a few minutes later, Young said, pointing the firearm at Cannon, but made it into the

store only a few steps before Cannon started shooting. Young testified that he had merely

approached the door of the business before all three men were forced to flee from Cannon’s

gunfire. When Williams told Young that he had dropped the handgun, Young decided to

retrieve it. As Young entered the store and attempted to grab his weapon, Cannon shot him

in his abdomen.


       1
       The three men were jointly indicted, but the State agreed to a severance of
Williams’s case for trial.

                                             3
¶8.    Veal also testified at trial, and despite his earlier statement claiming no involvement

in the crime, he gave a version of events quite similar to Young’s. Veal testified that he

initially had denied being involved because he was afraid.

¶9.    Williams testified in his own defense, maintaining that Veal and Young were the only

two involved in the crime. According to Williams, he did not invite the other men to his

house that day, claiming that the two men simply had run out of gasoline near his house.

Williams testified that he remained at his house while Veal and Young left to go find gas

money from a relative who lived nearby, and that he had no idea they were involved in an

attempted robbery until Veal returned and said that Young had been shot. Williams said that

he was outside his house, talking with a friend, Cherokee Cox, when the incident took place.

Although Cox was identified by Williams, prior to trial, as a potential alibi witness, she was

not called to testify.

¶10.   The jury found Williams guilty of attempted armed robbery; but because the jury was

unable to agree upon a life sentence, the judge conducted a separate sentencing hearing. See

Miss. Code Ann. § 97-3-79 (Rev. 2006). Following that hearing, the trial judge sentenced

Williams to fifteen years in custody, with ten of those years to be served, followed by five

years of post-release supervision.

                                         Discussion

¶11.   Williams raises two issues on appeal: (1) whether the trial judge erred in refusing a




                                              4
cautionary jury instruction regarding accomplice testimony; and (2) whether the trial judge

erred by not ordering a mistrial, sua sponte, due to improper comments by the prosecution

during closing arguments. We find the first issue dispositive.

¶12.   “Clear law in the State of Mississippi is that the jury is to regard the testimony of co-

conspirators with great caution and suspicion.” Derden v. State, 522 So. 2d 752, 754 (Miss.

1988) (citing Winters v. State, 449 So. 2d 766, 771 (Miss. 1984); Simpson v. State, 366 So.

2d 1085 (Miss. 1979); Thomas v. State, 340 So. 2d 1 (Miss. 1976)). When determining

whether a defendant is entitled to such a cautionary instruction, the trial judge considers

whether the witness was in fact an accomplice and whether the witness’s testimony was

corroborated. Brown v. State, 890 So. 2d 901, 910 (Miss. 2004) (citing Burke v. State, 576

So. 2d 1239, 1242 (Miss. 1991)). Although granting a cautionary instruction regarding the

testimony of an accomplice is within the trial judge’s discretion, such an instruction is

required when the accomplice’s testimony is the sole basis for the conviction, and the

defendant’s guilt is not clearly proven. Wheeler v. State, 560 So. 2d 171, 173 (Miss. 1990)

(citing Holmes v. State, 481 So. 2d 319, 322-23 (Miss. 1985); Hussey v. State, 473 So. 2d

478, 480 (Miss. 1985)).

¶13.   In refusing the proposed instruction the trial judge stated,

       There is a case of Collum, C-O-L-L-U-M, that gives the two part test for
       accomplice’s testimony. Of course, it has got to be an accomplice, but also it
       has got to be substantially impeached or unreasonable and it does not meet that
       burden under the two part test of Collum, so that would [be] refused.




                                              5
¶14.   We are unable to locate a Mississippi case involving a defendant named Collum which

also addresses accomplice testimony. In addition, it appears that the trial judge incorrectly

described the test governing whether accomplice testimony, standing alone, is sufficient to

support a conviction. While there are Mississippi cases that refer to “unreasonable” or

“substantially impeached” accomplice testimony, they tend to focus on whether such

testimony is sufficient to support a conviction, not whether a cautionary jury instruction is

proper. E.g., Payton v. State, 897 So. 2d 921, 937 (Miss. 2003); Brown v. State, 682 So. 2d

340, 344 (Miss. 1996); Ballenger v. State, 667 So. 2d 1242, 1253 (Miss. 1995); Mason v.

State, 429 So. 2d 569, 571 (Miss. 1983); Moody v. State, 371 So. 2d 408 (Miss. 1979). The

controlling principle is that “the uncorroborated testimony of an accomplice may be

sufficient to convict an accused. . . . However, the general rule is inapplicable in those cases

where the testimony is unreasonable, self contradictory or substantially impeached.”

Ballenger, 667 So. 2d at 1253 (quoting Flanagan v. State, 605 So. 2d 753, 757-58 (Miss.

1992)). In such cases, the trial court must direct a verdict of not guilty. Id.

¶15.   The test for whether evidence is sufficient to support a conviction is more stringent

than the test for whether the evidence warrants a cautionary jury instruction. In the first

instance, the case never reaches the jury, and the defendant is acquitted. See, e.g., Catchings

v. State, 394 So. 2d 869, 870 (Miss. 1981) (citations omitted). In the second instance, the

jury is permitted to find the defendant guilty or not guilty, but is instructed that the

uncorroborated testimony of an accomplice should be regarded with “great caution and



                                               6
suspicion.” Walton v. State, 998 So. 2d 971, 977 (Miss. 2008) (quoting Strahan v. State,

729 So. 2d 800, 805 (Miss. 1998)).

¶16.   On appeal, both the State and Williams make the same mistake as the trial court. Both

argue that the accomplice’s testimony must be “self-contradictory” or “substantially

impeached” to warrant a cautionary instruction, but the cases on which they rely address the

sufficiency of the evidence. The State does quote a case from the Court of Appeals that held,

“[a] cautionary instruction is warranted when the testimony of an accomplice is

‘unreasonable, self contradictory or substantially impeached.’ ” Clemons v. State, 952 So.

2d 314, 318 (Miss. Ct. App. 2007) (quoting Ballenger, 667 So. 2d at 1253). However,

Clemons relies on this Court’s decision in Ballenger which, as discussed above, sets forth

the test for whether the uncorroborated testimony of an accomplice is sufficient to support

a conviction, not whether a cautionary instruction is required.

¶17.   This Court also has confused the two tests. In Ellis v. State, 790 So. 2d 813, 816

(Miss. 2001), just as in Clemons, this Court relied on Ballenger to conclude that “a

cautionary instruction is warranted when the testimony of an accomplice is ‘unreasonable,

self contradictory or substantially impeached.’ ” Ellis, 790 So. 2d at 816 (quoting Ballenger,

667 So. 2d at 1253). And, although it did not affect the outcome, this Court repeated Ellis’s

mistaken announcement of the rule in obiter dicta in Smith v. State, 907 So. 2d 292, 298

(Miss. 2005) (citing Ellis, 790 So. 2d at 816). To the extent that Ellis and Clemons suggest

that accomplice testimony must be “unreasonable, self-contradictory, or substantially

impeached” before a cautionary jury instruction is required, they are overruled. We now

                                              7
clarify that for a defendant to be entitled to a cautionary jury instruction, it is only necessary

that the accomplice’s testimony be uncorroborated. Brown, 682 So. 2d at 344.

¶18.   Here, the State argues that the testimony of Veal and Young was substantially

corroborated by other evidence. For example, the State points out that Young identified the

dropped handgun that was found in the store and that police officers were able to corroborate

Young’s statement that he was shot.

¶19.   However, none of this supports Young’s or Veal’s claims that Williams was involved

in the attempted robbery. In determining whether a cautionary jury instruction is required,

the testimony that must be corroborated is the testimony tying the defendant on trial to the

crime, and it is irrelevant whether other portions of the accomplice’s testimony are

corroborated. Holmes, 481 So. 2d at 322. In Holmes, this Court reversed a conviction for

failure to give a cautionary jury instruction where the only evidence directly tying the

defendant to the crime was the testimony of his accomplice. The accomplice, Everette

Thompson, testified that he and the defendant burglarized a local co-op store. Id. at 320.

The Court noted that there was a footprint at the scene that matched one of Thompson’s

shoes, but that this fact     merely “corroborate[d] Thompson’s admission that he had

committed the crime.” Id. at 322 (emphasis in original). According to the opinion, the Court

“examined the record and . . . found no testimony which corroborates that of Everette

Thompson as it refers to [the defendant].” Id. The Court reversed, saying that “[w]ithout the

testimony of Everette Thompson, there is nothing to indicate that [the defendant] was in any

way involved in the burglary of the Co-op.” Id.

                                                8
¶20.   Likewise, in the instant case, there is nothing, other than Young and Veal’s testimony,

tying Williams to the crime. Without their statements, the evidence would have been

insufficient to support a conviction, a fact that is undisputed by the State. When the only

evidence against the defendant is the testimony of an accomplice, “the trial judge must

accede to the accused’s request and grant a cautionary jury instruction.” Id. at 323 (citing

Catchings, 394 So. 2d at 870; Green v. State, 456 So. 2d 757, 758 (Miss. 1984)).

¶21.   At trial, the prosecutor argued that “the testimony of the co-defendants has been

corroborated . . . by each other.” Although the State does not make the same argument on

appeal, we note that testifying accomplices cannot corroborate each other sufficiently to

obviate the necessity of a cautionary jury instruction. This Court has held that a cautionary

jury instruction is required even though multiple accomplices testify and may corroborate

each other. E.g., Burns v. State, 729 So. 2d 203, 223 (Miss. 1998); Derden, 522 So. 2d at

754. In addition, there is the well-settled rule that a cautionary jury instruction is required

when the State’s case is based upon the testimony of an accomplice corroborated only by a

confidential informant. Austin v. State, 784 So. 2d 186, 193 (Miss. 2001) (citing Edwards

v. State, 630 So. 2d 343, 344 (Miss. 1994); Parker v. State, 378 So. 2d 662, 663 (Miss.

1980)). This is because both accomplice and informant testimony are, “by [their] very

nature, looked upon with suspicion and distrust.” Id. If a confidential informant cannot

corroborate an accomplice’s testimony because both are inherently untrustworthy, it follows

that testifying accomplices cannot corroborate each other for the same reason.



                                              9
¶22.   Therefore, because the trial court failed to grant Williams’s cautionary jury instruction

regarding the uncorroborated testimony of his co-defendants, the conviction is reversed, and

the case is remanded for further proceedings.

¶23.   REVERSED AND REMANDED.

     WALLER, C.J., GRAVES, P.J., DICKINSON, LAMAR, CHANDLER AND
PIERCE, JJ., CONCUR. CARLSON, P.J., SPECIALLY CONCURS WITH
SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., DICKINSON,
RANDOLPH, LAMAR AND PIERCE, JJ.

       CARLSON, PRESIDING JUSTICE, SPECIALLY CONCURRING:

¶24.   While I agree with the majority opinion that Williams’s conviction and sentence must

be reversed and this case remanded for a new trial due to the trial court’s failure to give an

accomplice instruction, I write separately in order to expand the discussion on accomplice

testimony and the accomplice instruction.

¶25.   The majority opinion correctly notes that a trial judge has, at the most, only two

questions to answer in making a determination as a matter of law on whether an accomplice

instruction should be given. First of all, the trial judge must determine whether the target

witness for whom the cautionary instruction is being considered is an accomplice. Brown

v. State, 890 So. 2d 901, 910 (Miss. 2004) (citing Burke v. State, 576 So. 2d 1239, 1242

(Miss. 1991)). If the first question is answered in the affirmative, then the second question

the trial judge must answer is whether the accomplice’s testimony is uncorroborated. Id. If

the second question is also answered in the affirmative, the trial judge must give the




                                              10
appropriate cautionary instruction for an accomplice on pain of reversal for his/her failure

to do so.

¶26.   In Slaughter v. State, 815 So. 2d 1122, 1134 (Miss. 2002), we took the opportunity

to once again define an accomplice in the criminal context:

       This Court has defined an accomplice in prior case law. “An accomplice is a
       person who is implicated in the commission of a crime.” Brewer v. State, 725
       So. 2d 106, 124 (Miss. 1998). An accomplice has also been defined by this
       Court as “a person who is implicated in the commission of the crime. That is
       to say, that if the evidence admits a reasonable inference that the witness may
       have been a co-perpetrator or the sole perpetrator the cautionary instruction
       should be given.” Williams v. State, 729 So. 2d 1181, 1188 (Miss. 1998)
       (citing Dedeaux v. State, 125 Miss. 326, 87 So. 664 (1921)); Burke v. State
       576 So. 2d [1239] at 1242 [(Miss. 1991)].

Slaughter, 815 So. 2d at 1134. In fact, to be considered an accomplice in a case, it is not

even necessary that the target witness be prosecuted for the crime. Williams v. State, 729

So. 2d 1181, 1189 (Miss. 1998). Thus, without question, in today’s case, Montreal Veal and

Terrence Young were accomplices.

¶27.   The majority opinion thoroughly addresses the second prong of the accomplice-

instruction test concerning whether the testimony of the accomplice(s) is uncorroborated.

As noted in the majority opinion, the only testimony in today’s case concerning the

commission of the crime comes from Veal, Young, and Stephanie Cannon, the victim, who

is the owner and operator of Stephanie’s Discount Store, the target of the attempted robbery.

To this day, Cannon has been unable to identify the men who attempted to rob her on the day

in question. Thus, as stated in the majority opinion, we are left with the testimony of Veal

and Young, both accomplices in this crime, as the only evidence linking Williams to the

                                             11
crime. “[S]ince there was no corroboration of the testimony of these three [accomplices],

other than each other, the [accomplice] instruction would be mandatory.” Williams, 729 So.

2d at 1189 (citing Holmes v. State, 481 So. 2d 319, 322-23 (Miss. 1985); Hussey v. State,

473 So. 2d 478, 480 (Miss. 1985)); see also Edwards v. State, 630 So. 2d 343, 343-44 (Miss.

1994).

¶28.     Although the majority recites the critical portion of the jury-instruction conference

between the lawyers and the trial judge, I wish to set out verbatim from the record additional

discussion during the jury-instruction conference as it relates to proffered instruction number

D-11, which is the accomplice instruction submitted by defense counsel for consideration by

the trial court:

         BY THE COURT: Okay. And eleven, D-11, the accomplice’s testimony. Any
         objection from the State?

         BY [THE PROSECUTOR]: Yes, sir. I don’t think that is warranted under the
         proof as it sits for the Court. I think that’s only proper where the proof offered
         is the uncorroborated testimony of a co-defendant or an accomplice. In this
         case the State would argue that the testimony offered by the co-defendants has
         been corroborated by the victim, at least by the victim and by each other. We
         don’t think it is proper.

         BY THE COURT: Anything else from the Defense on that?

         BY [DEFENSE COUNSEL]: We would state that there has not been any
         corroboration outside the fact that she [victim] says there was a person present.

         BY THE COURT: There is a case of Collum, C-O-L-L-U-M, that gives the
         two part test for accomplice’s testimony. Of course, it has got to be an
         accomplice, but also it has got to be substantially impeached or unreasonable
         and it does not meet that burden under the two part test of Collum, so that
         would refused (sic).


                                                12
¶29.   Even though I disagree with the prosecutor’s argument concerning the existence of

corroboration of the accomplices’ testimony, at least the prosecutor argued against the

accomplice instruction for the correct legal reason. As noted above, the prosecutor correctly

argued to the trial judge that an accomplice instruction should be given only when the

testimony of an accomplice is uncorroborated. However, notwithstanding the prosecutor’s

argument, and as correctly pointed out in the majority opinion, in considering whether the

accomplice instruction should have been given in this case, the trial judge made his decision,

not on whether the testimony of Veal and/or Young was uncorroborated, but instead, sua

sponte, on whether the testimony of Veal and/or Young was “substantially impeached or

unreasonable.” The only time a trial judge is required to consider the issue of whether an

accomplice’s testimony is unreasonable, self-contradictory, or substantially impeached is

when the trial judge is confronted with a defense motion for a directed verdict during trial,

or a post-trial motion for judgment notwithstanding the verdict which challenges the legal

sufficiency of the evidence. See, e.g., Ballenger v. State, 667 So. 2d 1242, 1253 (Miss.

1995) (citing Flanagan v. State, 605 So. 2d 753, 757-58 (Miss. 1992)). Likewise, it is the

responsibility of this Court to consider these same factors when considering on appeal a

challenge to the legal sufficiency of the evidence to sustain a conviction.2




       2
        To be clear, notwithstanding this discussion, the law of this State continues to be that
the general rule is the uncorroborated testimony of an accomplice may be sufficient to
sustain a conviction. Ballenger, 667 So. 2d at 1253 (citing Mason v. State, 429 So. 2d 569,
571 (Miss. 1983)).

                                              13
¶30.   Quite frankly, I would suggest to our trial judges that when confronted with the issue

of whether to give an accomplice instruction, if there is any doubt at all as to whether the

testimony of the accomplice is uncorroborated, the accomplice instruction ought to be given

in the following form:

       The Court instructs the jury that John Doe is an accomplice in this case. The
       Court has already instructed you that you, as jurors, are the sole judges of the
       weight and credit to be assigned the testimony and supporting evidence of each
       witness who has testified in this case. However, since John Doe is an
       accomplice in this case, any testimony of John Doe which you find to be
       uncorroborated by other evidence should be viewed with great caution and
       suspicion if you find such uncorroborated testimony to be unreasonable, self
       contradictory, or substantially impeached.

¶31.   Finally, in addressing that part of the majority opinion which would overrule this

Court’s decision in Ellis v. State, 790 So. 2d 813, 816 (Miss. 2001), and the Court of

Appeals’ decision in Clemons v. State, 952 So. 2d 314, 318 (Miss. Ct. App. 2007), I cannot

find fault with the majority opinion’s analysis as to Ellis and Clemons, because both these

cases appear to misstate Ballenger, which clearly was addressing the “unreasonable, self

contradictory or substantially impeached” aspect of an accomplice’s testimony from the

standpoint of addressing the legal sufficiency of the evidence to sustain a conviction.

Ballenger, 667 So. 2d at 1253. The discussion in Ballenger had nothing to do with the issue

of whether an accomplice instruction should have been given. Id. at 1252-53. Concerning

the majority’s discussion of Smith v. State, 907 So. 2d 292, 298 (Miss. 2005), while Smith

admittedly does carry forward the same quote from Ellis citing Ballenger (907 So. 2d at




                                             14
298), Smith correctly guides the trial bench and bar as to when an accomplice instruction is

required and the general form which the instruction should take.

       Additionally, proposed jury instruction D-1 states that an accomplice's
       testimony must “always be examined and weighed by the jury with greater
       care and caution than the testimony of ordinary witnesses.” This is an incorrect
       statement of the law. We take this opportunity to clarify that when an
       accomplice instruction is required, the trial court (as was done in this case)
       must inform the jury that an accomplice's testimony which is uncorroborated
       by other evidence must be viewed with great caution and suspicion. Black v.
       State, 336 So. 2d 1302, 1303 (Miss. 1976) (citing Hutchins v. State, 220 So.
       2d 276 (Miss. 1969); Cole v. State, 217 Miss. 779, 65 So. 2d 262 (1953)). See
       also Brown v. State, 890 So. 2d 901, 910-911 (Miss. 2004); Ellis v. State, 790
       So. 2d 813, 816 (Miss. 2001) (Uncorroborated testimony of an accomplice
       may be sufficient to convict an accused but a cautionary instruction is
       warranted where the testimony is unreasonable, self contradictory or
       substantially impeached.) (quoting Ballenger v. State, 667 So. 2d 1242, 1253
       (Miss. 1995)). The testimony of an accomplice is not required to be viewed
       with great caution and suspicion just because he is an accomplice, but instead
       it is only that portion of an accomplice's testimony which is uncorroborated by
       other evidence which is viewed with great caution and suspicion. The jury
       instruction given by the trial court properly stated that if the jury found the
       testimony of the alleged accomplice to be uncorroborated by other evidence,
       then the jury should view his testimony with great caution and suspicion. This
       is a correct statement of the law, and the trial court did not err in refusing the
       defense's proposed instruction D-1.

Smith, 907 So. 2d at 298 (emphasis in original).

¶32.   In sum, I would encourage our trial judges to give accomplice instructions without

hesitation when justified by the evidence and the applicable law. If error is to be made when

considering a properly worded accomplice instruction, err on the side of giving the

accomplice instruction.

¶33.   Having offered my views on accomplice testimony and the accomplice instruction in

general, the inescapable conclusion in today’s case is that because the only direct evidence

                                              15
linking Willie Williams to the robbery was the testimony of two accomplices, Montreal Veal

and Terrence Young, and because the trial judge refused to instruct the jury concerning

accomplice testimony, I concur in the majority opinion reversing Williams’s conviction and

sentence and remanding to the trial court for another trial.

     WALLER, C.J., DICKINSON, RANDOLPH, LAMAR AND PIERCE, JJ., JOIN
THIS OPINION.




                                             16
