                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 96-CT-00030-SCT
SUZANNE ILENE TAVARES
v.
STATE OF MISSISSIPPI
                          ON PETITION FOR WRIT OF CERTIORARI
DATE OF JUDGMENT:                               09/22/95
TRIAL JUDGE:                                    HON. JOSEPH H. LOPER, JR.
COURT FROM WHICH APPEALED:                      ATTALA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                        GRADY F. TOLLISON, JR.
                                                AMY D. WHITTEN
                                                E. FARISH PERCY
ATTORNEYS FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL
                                                BY: WAYNE SNUGGS
                                                BY: BILLY L. GORE
DISTRICT ATTORNEY:                              DOUG EVANS
NATURE OF THE CASE:                             CRIMINAL - FELONY
DISPOSITION:                                    AFFIRMED - 6/11/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                 8/27/98




     EN BANC.


     MILLS, JUSTICE, FOR THE COURT:


                                             Introduction

¶1. This case is before the Court sitting en banc on a petition for writ of certiorari filed by Suzanne
Ilene Tavares. Ilene was convicted of murdering her husband, Jerry Tavares. She was sentenced to
life imprisonment without possibility of parole. The Court of Appeals affirmed her conviction and
sentence and her motion for rehearing. Ilene filed a timely petition for writ of certiorari which this
Court granted. Finding no reversible error, this Court affirms Ilene's conviction and sentence.

                                                FACTS

¶2. Jerry Tavares was killed by three shots from a nine millimeter gun. Bennie Cork became a suspect
and informed the police that Jerry's murder was the result of a scheme involving Billy Joe Barnett,
Glen Dale Davis, and Suzanne Ilene Tavares, the deceased's wife.

¶3. Cork testified that he was approached by Barnett to kill a man. Cork met with Barnett and Davis
to discuss the murder. Cork agreed to kill Jerry and the three of them picked out a location to kill
Jerry near the store owned by Jerry and Ilene. Cork and Davis took Barnett to the store so he could
get Jerry to the murder site. Cork and Davis drove to the murder site and waited on Barnett and Jerry
to arrive. Approximately thirty minutes later, Barnett and Jerry arrived in Jerry's truck. Barnett
approached Cork, but Cork stated that he was not going to kill Jerry and turned around and walked
off. Cork then heard two gunshots and when he turned around, he saw Barnett shoot Jerry a third
time.

¶4. The three men then drove toward Little Mountain. Barnett told Cork that he was going to call
Jerry's wife and let her know the location of the body. Cork testified that Barnett called a lady named
"Ilene." Phone records were introduced at trial indicating that a phone call was placed from the Little
Mountain Service Station to Ilene's home at 11:01 p.m. on May 11, 1992. Cork was then taken to
Maben, Mississippi, and told to get rid of the gun. Cork threw the gun in a creek. It was later
recovered by divers.

¶5. Cork was paid $500 to get rid of the gun. A check for $500 dated June 30, 1992, payable from
Davis to Cork was introduced at trial. Barnett asked Davis to write the $500 check to Cork. Davis
told Barnett that he did not have enough to cover the check and that Barnett would have to make a
deposit the next day to cover it. A cash deposit in the amount of $495 was made to Davis's checking
account on July 3, 1992.

¶6. Cork stated that Barnett was supposed to pay him, but Barnett had difficulty in cashing a $1,500
check given to him by Ilene. A check dated June 5, 1992, in the amount of $1,500 payable to Barnett
was introduced at trial. The check was drawn on the store's account and signed by Ilene.

¶7. Mark Smith, an acquaintance of Jerry and Ilene Tavares and Billy Joe Barnett, testified that two
weeks before the murder, Barnett approached him twice and offered him money and a vehicle to kill
Jerry. Barnett told him that he could not pay him because he had to wait on some insurance money.
Smith declined the offer on both occasions. The weekend before the murder, Smith traded a nine
millimeter gun with Barnett. The gun traded to Barnett was the gun used in the murder. The morning
following the murder, Barnett told Smith to report the gun as stolen.

¶8. At the time of Ilene's trial, Barnett had been convicted of capital murder and sentenced to life
imprisonment without parole. Cork entered a plea of guilty to capital murder and received a sentence
of life imprisonment with eligibility for parole. Davis had not been tried.

                                               ISSUES


     I. THE TRIAL COURT ERRED IN ADMITTING "FLIGHT" EVIDENCE AND IN
     GIVING "FLIGHT" INSTRUCTION.

     II. THE TRIAL COURT ERRED IN IMPOSING AN ILLEGAL SENTENCE OF LIFE
     WITHOUT PAROLE.
     III. THE TRIAL COURT ERRED IN ADMITTING CO-CONSPIRATORS' HEARSAY
     STATEMENTS.

     IV. THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE THAT BENNIE
     CORK FAILED POLYGRAPH TESTS.

                                              ANALYSIS


     I. THE TRIAL COURT ERRED IN ADMITTING "FLIGHT" EVIDENCE AND IN
     GIVING "FLIGHT" INSTRUCTION.

¶9. On the day of her trial, Ilene did not appear. Ilene's bond was revoked and a warrant was issued
for her arrest. She was located at approximately 7:00 p.m. in Attala County by Deputy Hudson of the
Attala County Sheriff's Department. Deputy Hudson met Ilene head-on. He recognized her, turned
his car around, and pursued her. Ilene sped away. Deputy Hudson chased her for approximately four
miles before she lost control of her car and crashed into a ditch. Ilene was intoxicated and her car
contained a gun with bullets, $2,247.63 in cash, numerous items of clothes and toiletries,
photographs, a road atlas, jewelry, etc.

¶10. Ilene filed a motion in limine to keep this evidence from being presented to the jury. The trial
judge denied the motion and based his reasoning on testimony presented at the hearing held on the
motions for psychiatric examination and for release of personal property. Ilene testified that she left
her house to go to the store to call her mother and that was the last thing she remembered before
being stopped. She stated that the clothing and toilet items were in her car because she did not use
the items anymore and did not have room for all of it in her home.

¶11. In denying the motion in limine, the trial judge relied on Pannell v. State, 455 So. 2d 785 (Miss.
1984), Fuselier v. State, 468 So. 2d 45 (Miss. 1985), and Mack v. State, 650 So. 2d 1289 (Miss.
1994). In Pannell, this Court held that a flight instruction was appropriate in cases where the flight
was unexplained and in cases wherein flight has considerable probative value. Id. at 788. In Fuselier,
this Court further held that "an instruction that flight may be considered as a circumstance of guilt or
guilty knowledge is appropriate only where that flight is unexplained and somehow probative of guilt
or guilty knowledge." Id. at 56-57. In Mack, this Court found that Fuselier implicitly held that
"evidence of flight is inadmissible when independent reasons exist to explain the flight . . . ." Id. at
1309. Finally, the probative value must substantially outweigh its prejudicial effect. Id.

¶12. The trial judge made the following findings:

     I think based on the law that's developed since Pannell and, of course, Pannell was a
     development of prior law that you have to ask four things in determining whether or not flight
     evidence would be admissible.

     First would be is the flight unexplained, and I think clearly in this case the flight is unexplained.
     It's totally denied in fact. So, there's a complete dispute in the testimony as to whether or not
     flight even occurred at all. The Defendant denies that flight occurred. The deputy on the other
     hand states that he engaged in a high speed chase that resulted in the Defendant, in fact, running
in a ditch and wrecking her automobile. So, that is unexplained.

Now, the Defendant attempted to explain what she did on that date by stating that she blacked
out, but that does not explain why she apparently came to as soon as she saw a deputy, and
then still denies that she ran from him.

The Court also then will look at the next factor, does it have considerable probative value. And,
the Court considered that, and it seems that all of the items in the automobile are consistent
with someone that was attempting to flee, escape, or make a quick exit from the jurisdiction of
the Court.

Many of the items in the car were apparently scattered around, which certainly tends to show
someone that was grabbing as many things as possible trying to make a quick and hasty exit and
not taking much time to do that.

Also, you look at the evidence that was actually in -- or the items that were actually in the
automobile. It was clothes, shoes, suitcases with clothes in them, toiletry items, jewelry, family
pictures, a Road Atlas, a large sum of case [sic]. That all is certainly probative of somebody that
had guilty knowledge of the crime for which they were charged, and I think that the facts as
exist as far as the items that were in the automobile, coupled with the fact that that was the day
of her trial, would certainly show considerable probative value of the Defendant's consciousness
of guilt of the crime for which she was going to be on trial.

The Court also then had to look at the factor, is the evidence of flight probative of things other
than the guilt or guilty knowledge of the murder of Jerry Tavares.

In Fuselier v. State and Mack v. State, our Supreme Court stated that because the defendants
were prison escapees that evidence of flight tended to show evidence of proof of guilty
knowledge of escape, as well as proof of guilty knowledge of the crime for which they were on
trial.

So, there was a situation where there were two separate and distinct trials, I mean crimes; if
they ran from one crime they might have been running from the escape charge rather than from
the crime for which they were on trial.

The Court seemed to be concerned that a defendant in those cases would have to put on proof
of their prison escape in order to defend against the allegations that they were fleeing because
of a sense of guilt for the crime for which they were on trial.

Now, in this case the Defendant argues that proof of flight in this case is as much evidence of
guilt of failure to show up for trial or for a bond violation as it would be of guilt of the crime of
capital murder. But, in reviewing the testimony of the Defendant, and if the Defendant had
stated under testimony that that's why she ran that would be one thing, but the Defendant's
testimony again, which was re-read yesterday afternoon by me, stated that she did not flee from
the police at all. She stated that Deputy Hudson did not get in behind her. Since the Defendant
denies that she engaged in flight from Deputy Hudson, she's not in the same position as the
defendants in Fuselier and Mack are in. In those cases the defendants were prejudiced because
     they would have to put on testimony of guilt of another crime in order to defend against the
     evidence that they were in flight because of a sense of guilt for the crime for which they were on
     trial.

     However, in this case the Defendant will not be prejudiced because if she has to put on proof of
     commission of another crime because her testimony is that she did not engage in flight to begin
     with.

     So, a total denial of flight is not the same type proof that the Supreme Court deemed prejudicial
     in Mack and Fuselier. The Defendant in this case simply would deny that she engaged in flight
     at all. Therefore, that would not bring up any evidence of any other crime that she had
     committed.

     Also, I think that the fact that the failure to appear for trial is so inter-related with the charge
     for which the Defendant is on trial, I do not think that that would be considered by the Jury to
     be a separate crime to begin with.

     Finally, the Court has to balance whether or not the probative value is substantially outweighed
     by the prejudicial effect so as to render the evidence inadmissible under Rule 4.03.

     The Court is of the opinion that the probative value is not substantially outweighed, and,
     therefore, the Court will rule that the evidence will be admissible as to her attempt to flee the
     jurisdiction or attempt to flee from Officer Hudson on the date that her trial was set to begin.

¶13. The trial judge found that Ilene's flight was unexplained, that the case was distinguishable from
Fuselier and Mack because Ilene denied that she fled, and that the probative value of the flight
evidence was not outweighed by its prejudicial value.

¶14. The Court of Appeals affirmed the trial judge's finding:

     Tavares contends that her situation is similar to that in Mack. She asserts that a totally
     independent basis existed for her flight from Deputy Hudson: the fact that she was in violation
     of her bond for failure to appear, and also that she was intoxicated at the time. However,
     Tavares herself testified that she was not fleeing from Deputy Hudson. She stated that she
     thought he was in pursuit of a speeding trucker. Therefore, any reliance on Mack is displaced as
     no independent basis existed for Tavares's flight.

     From the record, it is clear that Tavares's flight was unexplained. She did not show at her trial in
     Grenada County on the morning of June 26, 1992, and was apprehended in Attala County later
     that evening. She sped away from Deputy Hudson causing him to reach speeds of 90 miles per
     hour in pursuit. She was intoxicated at the time of her "flight" from Deputy Hudson and crashed
     her vehicle into a ditch. She had everything except "the kitchen sink" in her car when she was
     apprehended. Based upon these facts, evidence of flight was probative of guilt or guilty
     knowledge and thus the introduction of evidence and the instruction on flight were warranted.

¶15. Ilene filed a supplemental brief in which she cites this Court's more recent opinion in Fuselier v.
State, 702 So. 2d 388 (Miss. 1997). Once again, this Court reversed and remanded Fuselier's case as
a result of the State introducing evidence regarding Fuselier's flight. Unlike Ilene, however, Fuselier,
in both of his cases, could rationally explain his flight as not being evidence of guilt. The trial judge
did not commit reversible error in admitting evidence of Ilene's flight.

     II. THE TRIAL COURT ERRED IN IMPOSING AN ILLEGAL SENTENCE OF LIFE
     WITHOUT PAROLE.

¶16. At the time of Jerry's murder, Miss. Code Ann. § 97-3-21 provided that anyone convicted of
capital murder shall be sentenced to death or to imprisonment for life in the state penitentiary. At the
time of Ilene's trial, § 97-3-21 had been revised to allow for life imprisonment without the possibility
of parole. After the jury returned a verdict of guilty but prior to the granting of the sentencing
instructions, defense counsel explained to Ilene that he could urge the trial judge to submit to the jury
the option of life without the possibility of parole. Defense counsel told Ilene that she would have a
better chance of a life sentence if this option were provided to the jury. The trial judge asked Ilene if
she understood the proposal and Ilene stated that she did. The trial judge allowed the instruction
insisted upon by Ilene. She now complains that the trial judge erred. We think otherwise.

¶17. The jury returned a sentence of life without the possibility of parole. The defense filed a motion
to amend the judgment challenging the legality of the sentence. The trial judge found that the
sentence did not violate the ex post facto clause of the federal or state constitutions and that the
defense had waived any objections by requesting that life without possibility of parole be provided as
a sentencing option. Relying on Stevenson v. State, 674 So. 2d 501 (Miss. 1996), the Court of
Appeals affirmed the sentence finding that the defense had waived any ex post facto claims.

¶18. In Lanier v. State, 635 So. 2d 813 (Miss. 1994), and Patterson v. State, 660 So. 2d 966 (Miss.
1995), the defendants bargained for life sentences without the possibility of parole in order to avoid
the death penalty. This Court found that even though the defendants had knowingly and voluntarily
waived the possibility of parole, the trial court did not have the authority to impose such a sentence.
In Lanier, the defendant was originally sentenced to death, but bargained for life imprisonment
without the possibility of parole after his sentence was reversed and remanded. He appealed the
denial of his request for post-conviction relief asking that this Court simply delete the "without
possibility of parole" language. This Court found that the agreement was void and that upon remand,
Lanier was subject to the death penalty. Lanier, 635 So. 2d at 819. Patterson involved a guilty plea.
In finding that the guilty plea was invalid, this Court determined that Patterson had the right to be
sentenced by a jury and that the State had the right to seek the death penalty. Patterson, 660 So. 2d
at 969.

¶19. Stevenson also involved a guilty plea. This Court determined that the guilty plea was
unenforceable and of no effect. Stevenson, 674 So. 2d at 506. Upon remand, this Court gave the
following options: (1) the State can plea bargain with Stevenson and ask for his waiver of a potential
ex post facto violation and have life without possibility of parole imposed under the new statute; (2)
Stevenson can go to trial with the possibility of receiving the death penalty or life imprisonment with
the possibility of parole; or (3) the State can allow Stevenson to enter a plea with the imposition of a
life sentence with the possibility of parole.

¶20. The Court of Appeals found that Stevenson allows for the waiver of an ex post facto claim.
Stevenson, however, involved an invalid plea bargain. This case involves an actual sentencing
instruction presented to a jury.
¶21. In Dobbert v. Florida, 432 U.S. 282 (1977), the statute at issue provided that anyone sentenced
to life imprisonment must serve at least 25 years before becoming eligible for parole. The previous
statute did not contain such a provision. The defendant, however, was sentenced to death. Dobbert
did not receive a life sentence, and "so any added onus attaching to it as a result of the change in
Florida law had no effect on him." Id. at 298. Dobbert, "having been sentenced to death, may not
complain of burdens attached to the life sentence under the new law which may not have attached to
it under the old." Id. at 301.

¶22. "The Constitution forbids the application of any new punitive measure to a crime already
consummated, to the detriment or material disadvantage of the wrongdoer." Lindsey v. Washington,
301 U.S. 397, 401 (1937) (citations omitted). In California Dep't of Corrections v. Morales, 514
U.S. 499 (1995), however, the United States Supreme Court stated that the "disadvantage" language
in Lindsey was unnecessary. Id. at 506 n.3. "[T]he focus of the ex post facto inquiry is not on
whether a legislative change produces some ambiguous sort of 'disadvantage,' . . . but on whether any
such change alters the definition of criminal conduct or increases the penalty by which a crime is
punishable." Id.

¶23. Unlike Dobbert, the minimum penalty in the case at hand did not change. Life imprisonment
with the possibility of parole was still an option. The maximum penalty, death, also did not change.
The new statute only provided for an optional sentence that was more than the minimum and less
than the maximum.

¶24. The Court of Appeals did not specifically state that the sentence violated the ex post facto
clause, but it did find that ex post facto claims could be waived. This Court, however, finds that the
amended statute is ameliorative. The amended statute is not onerous. It does not alter "the definition
of criminal conduct or increase[] the penalty by which a crime is punishable." Morales, 514 U.S. at
506 n.3. Therefore, the trial judge did not err in allowing the jury to consider the option of sentencing
Ilene to life without the possibility of parole. This Court finds that Ilene's sentence does not violate
the ex post facto clause.

     III. THE TRIAL COURT ERRED IN ADMITTING CO-CONSPIRATORS' HEARSAY
     STATEMENTS.(1)

¶25. Ilene contends that the trial judge erred in allowing hearsay statements of Cork prior to
establishing the existence of a conspiracy. In Ponthieux v. State, 532 So. 2d 1239 (Miss. 1988), this
Court held that before a co-conspirator's testimony could be admitted under M.R.E. 801(d)(2)(E),
"the prosecution had the obligation to establish the preliminary fact of the existence of the conspiracy
. . . ." Id. at 1244. Ilene claims that it is not enough that the State introduced predicate proof of a
conspiracy between Cork and Barnett, or Cork, Barnett, and Davis. She argues that the State had to
establish proof of the existence of a conspiracy which included her before extraneous hearsay
statements of co-conspirators can qualify for admission as non-hearsay under M.R.E. 801(d)(2)(E).

¶26. In determining that the trial judge did not err in allowing Cork's testimony, the Court of Appeals
made the following analysis applying the holding in Ponthieux:

     At the trial level, the prosecution is entitled to offer evidence of plan and motive to employ the
     Rule 104 procedure to establish Rule 801(d)(2)(E) admissibility by showing that a conspiracy
     preceded consummation of the principal offense. Ponthieux v. State, 532 So. 2d 1239, 1244
     (Miss. 1988). This is especially true where the defendant is charged with having hired the victim
     killed, and the prosecution is proceeding on an accessory-before-the-fact theory. Id. The circuit
     court is limited to the evidence offered at the Rule 104 hearing. Id. However, on appeal, this
     Court will search the entire record to determine whether the preliminary fact of conspiracy has
     been established. "It is to the entire record that we employ a clearly erroneous standard of
     review." Id.

     Based upon the circuit court's standards, prior to Cork's testimony, it was established that the
     dead body of Jerry Tavares was found on a dirt road close to his convenience store. His body
     had been shot three times by a .9 millimeter weapon. Evidence showed that Jerry Tavares died
     as a result of .9 millimeter gunshots. An acquaintance of both Jerry and Ilene Tavares testified
     that both had stated that they would pay someone to have the other killed. Sheriff Steed
     testified that Cork told him where the gun and clip were. Steed stated that both the gun and clip
     were recovered from a stream. Steed testified as to the phone records from the Little Mountain
     service station to the Tavares's [sic] home. Steed also testified as to the location of the body.
     Finally, Steed stated that the arrests of Tavares, Barnett and Davis were immediately made after
     the conversation with Cork. Based on the above-mentioned evidence, we find evidence
     supporting a conspiracy was sufficiently proved prior to Cork's testimony.

     Also, based upon our broader standards upon appeal, in the record we find substantial evidence
     to support the conspiracy to kill Jerry Tavares. We find that the existence of a conspiracy is
     supported by the following: (1) the location of the bullet wounds in Tavares's body; (2) the
     location of the body; (3) the evidence of the phone call made from the service station in Little
     Mountain to Tavares's home; (4) the location of the gun and the clip found in the creek; (5) the
     $1,500.00 check from J.R.'s Hwy. 12 Mart signed by Tavares made payable to Billy Barnett; (6)
     the $500.00 check from Glen Davis to Bennie Cork; (7) the cash-in deposit ticket in the amount
     of $495.00 into the checking account of Glen Davis; (8) the statement by Mark Smith that he
     had been approached by Barnett to kill Jerry Tavares for money; and (9) the fact that the gun
     traded to Barnett by Smith was the .9 millimeter used in the murder. We find that the evidence
     was not clearly erroneous as to the circuit court's finding of the existence of a conspiracy
     between Tavares, Cork, Barnett and Davis.

¶27. Upon review of the entire record, the Court of Appeals was correct in its determination that the
trial judge's finding of the existence of a conspiracy was not clearly erroneous and does not constitute
reversible error.

     IV. THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE THAT BENNIE
     CORK FAILED POLYGRAPH TESTS.

¶28. The defense learned that Cork failed two polygraph tests administered by the State prior to trial.
The defense filed a motion to admit the results of the tests. A hearing was held and the defense
requested permission to introduce evidence limited to establishing that Cork had failed two polygraph
tests and specifically stated that it did not want to elicit information regarding individual questions
and answers. The trial judge denied the motion finding that (1) polygraph tests are inadmissible in
Mississippi courts, (2) there was no basis to show that polygraph examinations had any scientific
reliability, and (3) the results would be more prejudicial than probative under M.R.E. 403. The Court
of Appeals held that the trial judge did not err in excluding the evidence.

¶29. Ilene cites Conner v. State, 632 So. 2d 1239 (Miss. 1993), cert. denied, 513 U.S. 927 (1994),
in support of her argument that the trial judge erred in excluding the evidence. In Conner , this Court
held that the admission of evidence that a witness had volunteered to take a polygraph test was not
reversible error because it was being used to rehabilitate the veracity of the witness after the witness's
credibility had been impeached. Id. at 1257-59. Ilene argues that there is no difference between
admission on redirect for rehabilitation purposes and admission on cross-examination for
impeachment purposes.

¶30. In United States v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989), cited by this Court in Conner,
the Eleventh Circuit held that "polygraph evidence may be admitted . . . when used to impeach or
corroborate the testimony of a witness at trial." Id. at 1536. The Eleventh Circuit determined that
three prerequisites to the admission of such evidence must be met: (1) the party offering the evidence
must provide notice to opposing counsel; (2) the opposing party must have an opportunity to
participate in or monitor the testing; and (3) where used for impeachment or rehabilitation, the
predicate for admission must be properly laid. Id. Ilene contends that all three of these prerequisites
were met.

¶31. The Court of Appeals determined that in Conner this Court found that the witness's willingness
to take a polygraph was allowed because the defense, in its cross-examination, sought to impeach the
witness's veracity. The results of the polygraph were not introduced.

¶32. Ilene wants to introduce the results of the polygraph tests for impeachment purposes. In Carr v.
State, 655 So. 2d 824 (Miss. 1995), cert. denied, 516 U.S. 1076 (1996), however, this Court held
that Mississippi law forbids the admission of the results of a polygraph test. Id. at 836.

                                            CONCLUSION

¶33. The trial judge did not commit reversible error in determining that the evidence was
inadmissible. Accordingly, this Court affirms the judgment of the Court of Appeals.

¶34. AFFIRMED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, ROBERTS, SMITH AND
WALLER, JJ., CONCUR. McRAE, J., NOT PARTICIPATING.




1. Ilene was also convicted of conspiracy and sentenced to 20 years. This conviction, however, was
vacated pursuant to Stewart v. State, 662 So. 2d 552 (Miss. 1995), on the basis that conspiracy to
commit murder-for-hire is contained in the statutory definition of capital murder-for-hire. See Miss.
Code Ann. § 97-3-19(2)(d).
