                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-KA-01392-SCT
CLAUDE GLEETON, III a/k/a

CLAUDE EUGENE GLEETON, III
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                               10/01/96
TRIAL JUDGE:                                    HON. GEORGE C. CARLSON JR.
COURT FROM WHICH APPEALED:                      PANOLA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                        DAVID CLAY VANDERBURG
ATTORNEY FOR APPELLEE:                          OFFICE OF THE ATTORNEY GENERAL
                                                BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY:                              ROBERT L. WILLIAMS
NATURE OF THE CASE:                             CRIMINAL - FELONY
DISPOSITION:                                    AFFIRMED - 6/25/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                 7/16/98




     BEFORE SULLIVAN, P.J., ROBERTS AND WALLER, JJ.


     SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:




¶1. Claude Gleeton, III, and Anthony Cathey were indicted by the Panola County Grand Jury during
the February 1996, Session for conspiracy to commit capital murder and capital murder in the killing
of Charles Gray on or about December 8, 1995. Upon Gleeton's motion, Circuit Court Judge George
C. Carlson, Jr., ordered that the cases against Gleeton and Cathey be severed. Cathey pled guilty to
the charges in exchange for the State's agreement not to seek the death penalty and was sentenced to
life imprisonment without possibility of parole. The court called Cathey as a witness at Gleeton's trial
held on September 23, 1996, through October 1, 1996. The jury convicted Gleeton of capital murder
and conspiracy to commit capital murder and sentenced him to serve a life sentence without
possibility of parole for the capital murder conviction. On November 25, 1996, Judge Carlson denied
Gleeton's motion for a new trial or for J.N.O.V. The court sentenced Gleeton to serve twenty years
in the custody of the Mississippi Department of Corrections on the conspiracy conviction, to run
concurrently with the life sentence, in an order dated November 29, 1996. Gleeton appeals to this
Court and assigns as error the court's calling Cathey as a witness and the admission of Cathey's prior
testimony, and denial of his motions for a polygraph exam, for a directed verdict, and for a new trial
or J.N.O.V. We find no merit in any of Gleeton's claims and therefore affirm his conviction and
sentence.

                                  STATEMENT OF THE FACTS

¶2. On December 7, 1995, Anthony Cathey and Claude Gleeton, III decided to drive Gleeton's
father's truck to a club in Charleston. They spent the night at the Curtis home in Charleston. Mike
Curtis testified that Cathey had a gun, which Cathey said belonged to Gleeton, and the men were all
passing it around looking at the gun that night at his mother's house. The gun was identified as a .40
caliber Glock, later recovered from Gleeton's father by Investigator Walter Davis with the Mississippi
Highway Patrol and delivered to the Mississippi Crime Lab. The next morning Cathey, Gleeton, and
Mike Curtis left to go riding in Gleeton's truck. They drove to Oakland and spent the day drinking at
Reese Taylor's house and driving around in the truck. The men stopped at Terry McBrayer's store a
couple of times, making McBrayer nervous. They left the store after Gleeton asked McBrayer why
his two children were at the store instead of in school that day. At that point, McBrayer phoned the
sheriff's office to report his suspicion that the men had intended to rob his store. Gleeton and Cathey
drove Curtis back to Charleston and dropped him off at his mother's house.

¶3. At trial, Cathey testified that he told Gleeton to drive back towards Batesville, going through the
Red Hill community. They ended up by Chuck Gray's store, driving past it two times before finally
pulling into the parking lot. Cathey stated that he took the gun from underneath the seat of Gleeton's
truck, and while Gleeton pumped gas, Cathey went into the store to ask Gray if he had a bathroom.
Gray told him he didn't, so Cathey left, but returned a second time intending to rob the store. Cathey
shot Gray in his right eye as he sat in a chair behind the counter, then shot Gray two more times in
the back of the head while he lay on the floor. Cathey unplugged the cash register, took the money,
and took Gray's gun from behind the counter. Cathey returned to the truck, where he put the gun
back under the dashboard, and Gleeton drove Cathey home.

¶4. According to Cathey's testimony at trial, Gleeton had nothing to do with Chuck Gray's murder
and had no knowledge that Cathey went into the store with the gun. Cathey also claimed that he and
Curtis had discussed robbing someone that day, and in fact decided against robbing McBrayer since
his children were in the store, but that Gleeton was not involved in the conversation. However, Curtis
testified that Cathey brought up the idea of robbing someone, saying that he wanted to "pop" or "get
somebody." He also testified that he understood Gleeton to be in agreement with Cathey about
robbing someone, because Gleeton was talking about needing money in response to Cathey's
suggestion. Curtis had previously informed investigators that both Cathey and Gleeton were talking
about robbing someone that day.

¶5. Cathey kept Gray's gun and sold it to James Fox for $75 the day after Gray's murder. Panola
County Sheriff David Bryan received a tip from a confidential source that James Fox had Gray's gun.
Fox turned the gun over to Deputy Sheriff James Rudd, informing him that Cathey had sold him the
gun, so Rudd picked Cathey up at his mother's house on December 14, 1995. Cathey gave a taped
statement to Rudd, Sheriff Bryan, and Investigator Walter Davis that day. In his statement at the
sheriff's office, Cathey said that it was Gleeton's idea to go to Chuck Gray's store, and that they both
went in and Gleeton shot Gray. Cathey stated that he started to open the cash register, but changed
his mind, so Gleeton took the money. According to this first statement, Gleeton was also the one
who took Gray's gun, but Cathey said that he did pick it up at first. The two split up the money in
Gleeton's truck on the way back to Cathey's mother's house.

¶6. Gleeton's father, having been approached by investigators looking for Gleeton, brought Gleeton
to the sheriff's office on December 14. Gleeton told the officers that he was in Holly Springs all day
on December 8 and denied any involvement in Gray's murder. Cathey was brought into the room with
Gleeton and confronted Gleeton, accusing him of shooting Gray, but Gleeton still denied it.

¶7. At his plea hearing on May 31, 1996, Cathey gave essentially the same testimony as his statement
at the sheriff's office, identifying Gleeton as the trigger man. At his sentencing hearing, Cathey
similarly testified that Gleeton was the shooter, and that he and Gleeton had discussed robbing a drug
dealer in Charleston. He also admitted that he, Gleeton, and Curtis decided not to rob McBrayer's
store, because McBrayer's two children were there. However, Cathey denied having specifically
discussed robbing Gray's store with Gleeton, claiming that he didn't know that Gleeton planned to
rob Gray.

¶8. At trial, Cathey attributed the inconsistencies in his prior statements and his testimony at trial to
his desire to keep from getting caught and to avoid the death penalty. He also claimed that when he
gave his statement to the sheriff, he'd been drinking and smoking marijuana. However, Sheriff Bryan
and Deputy Sheriffs James Rudd and Craig Sheley testified that Cathey did not appear to be under
the influence of drugs or alcohol when he gave his statement. Dr. Steven Hayne, the pathologist who
performed the autopsy on Gray, testified that the cause of death was three gunshot wounds to the
head, and the manner of death was homicide.

¶9. Investigators recovered two projectiles from the floor under Gray's body and one from a security
box on the wall behind the chair where Gray would have been sitting when he was shot. They also
recovered three casings from the crime scene. The projectiles and casings were submitted to the
Mississippi Crime Lab for analysis. Steve Byrd, a forensic scientist specializing in firearm evidence
examinations at the Mississippi Crime Lab, testified that his tests revealed that the casings recovered
from the crime scene were fired from the Glock .40 recovered from Gleeton's father by Investigator
Davis. Byrd also found that the projectiles bore characteristics common to the gun, making it a
possible source of the projectiles, but he could not say that they were fired from that particular gun to
the exclusion of all others.

¶10. Based upon the above testimony, the jury found Gleeton guilty of both capital murder and
conspiracy to commit capital murder. Gleeton was sentenced to serve a life sentence without
possibility of parole for the capital murder conviction, and twenty years for the conspiracy
conviction, to run concurrently with the life sentence.

                                   STATEMENT OF THE LAW

                                                   I.

   THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A POLYGRAPH
                     EXAMINATION OF DEFENDANT.
                                         Standard of Review

¶11. The standard of review applied to the trial court's refusal to provide the defendant with funds for
an expert "is de novo, since the trial court's refusal was based upon law. The general standard of
review for a trial court's refusal to provide an expert witness is substantial need for that expert."
Holland v. State, 705 So.2d 307, 329 (Miss. 1997) (internal citations omitted).

                                                   I.

¶12. Gleeton cites two cases in support of his theory that the trial court should have provided him
with funds for a polygraph exam, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), and United States. v. Crumby, 895 F.Supp. 1354 (D.Ariz. 1995). In Daubert, the United
States Supreme Court held that the Federal Rules of Evidence superseded the Frye test, which
required that scientific evidence be "generally accepted" in the scientific community to be admissible.
Daubert, 509 U.S. at 585-87 (citing Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)). In
Crumby, the United States District Court of Arizona found "that polygraph evidence is sufficiently
reliable under Daubert to be admitted as scientific evidence under Fed.R.Evid. 702." Crumby, 895 F.
Supp. at 1361. Mississippi has not adopted the Daubert test for determining admissibility of scientific
evidence. Instead, this Court has adhered to application of the Frye test. Crawford v. State, No. 94-
DP-01016-SCT, 1998 WL 105774, at *18 (Miss. March 12, 1998); Polk v. State, 612 So.2d 381,
390 (Miss. 1992) ("Mississippi has continued to follow the Frye 'general acceptance' standard even
after the adoption of Rule 702 of the Mississippi Rules of Evidence."). Gleeton's reliance on Daubert
and Crumby is therefore misplaced.

¶13. In general, the results of a polygraph exam or even the fact that one was taken is inadmissible in
Mississippi. Carr v. State, 655 So.2d 824, 836 (Miss. 1995). We have only recognized an exception
for the admission of evidence of an offer or refusal to take a polygraph, both of which we have found
to be harmless. Lester v. State, 692 So.2d 755, 787 (Miss. 1997) ("evidence of an offer to take a
polygraph is only admissible to support the credibility of a witness whose veracity has previously
been attacked"); Conner v. State, 632 So.2d 1239, 1257-59 (Miss. 1993) (reference to previously
impeached witness's willingness to take polygraph was not reversible error when used to rehabilitate
the witness); Stringer v. State, 454 So.2d 468, 473-75 (Miss. 1984) (mere mention that defendant
refused to take polygraph exam was not reversible error in light of the other evidence before the jury)
. We refuse to extend the exception to allow for funds to take a polygraph exam in anticipation of
future attacks on the veracity of a potential witness. Refusal to provide funds for a polygraph exam is
not reversible error.

                                                  II.

 THE COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR A DIRECTED
                 VERDICT AND POST-TRIAL MOTIONS.

                                         Standard of Review

¶14. The standard of review applied to motions for directed verdict or J.N.O.V. is as follows:

     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).

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

                                                   II.

¶15. As his second point of error, Gleeton claims that the evidence presented at trial was insufficient
to support his capital murder conviction. Specifically, Gleeton contends that the only witness putting
him at the scene of the crime was his co-defendant, Cathey, who had committed perjury by giving
inconsistent statements under oath.

¶16. The State is required to prove every element of the offense charged beyond a reasonable doubt.
Heidel v. State, 587 So. 2d 835, 843 (Miss. 1991). As can be seen by the statute under which
Gleeton was charged, the indictment with which he was charged, and the court's instructions to the
jury, the State was required to prove that Gleeton (1) killed Charles Gray, (2) without authority of
law, (3) with or without any design to effect death, (4) during the commission of a robbery. Miss.
Code Ann. § 97-3-19(2)(e) (1994). The State also had to prove each element of the underlying felony
of robbery, that Gleeton (1) feloniously took the property of Gray, (2) in Gray's presence, (3) against
Gray's will, (4) by violence against Gray or by putting Gray in fear of immediate injury. Miss. Code
Ann. § 97-3-73 (1994). Cathey's testimony at his plea hearing and sentencing hearing that Gleeton
was the trigger man was sufficient to support a jury finding that Gleeton killed Charles Gray while
taking Gray's money from the cash register by violence against Gray.

¶17. However, the jury might also have believed, based upon Cathey's testimony at Gleeton's trial,
that Cathey was the trigger man and still convicted Gleeton of capital murder. Judge Carlson properly
instructed the jury on the definition of an aider and abetter. "Any person who is present at the
commission of a criminal offense and aids, counsels, or encourages another in the commission of that
offense is an 'aider and abettor' and is equally guilty with the principal offender." Sayles v. State, 552
So.2d 1383, 1389 (Miss. 1989). Even if the jury found Cathey's testimony that he (Cathey) was the
trigger man credible, there was sufficient evidence for the jury to find that Gleeton consented to and
encouraged the murder and robbery of Gray. Based upon Mike Curtis's testimony and Cathey's
involvement in the crime and prior inconsistent statements, it was reasonable for the jury to find
Cathey's testimony not wholly credible. Giving the prosecution the benefit of all favorable inferences
that may reasonably be drawn from the evidence, we find that reasonable jurors could differ on the
issue of Gleeton's guilt on the capital murder charge and affirm Gleeton's conviction and sentence.
                                                   III.

      THE COURT ERRED IN FAILING TO GRANT A NEW TRIAL CONCERNING
                     COMMENTS MADE BY A JUROR.

                                          Standard of Review

¶18. "The Supreme Court will reverse the lower court's denial of a motion for new trial only if, by
denying, the court abused its discretion." Morgan v. State, 703 So.2d 832, 840 (Miss. 1997)
(quoting Esparaza v. State, 595 So.2d 418, 426 (Miss. 1992)).

                                                   III.

¶19. At the post-trial motions hearing, Gleeton requested a new trial based upon a newspaper article
in which one of the jurors from his case was interviewed. Although the article was supposed to have
been made part of the record as an attachment to Gleeton's motion for a new trial, no copy of the
article appears in the record before us. According to statements made by defense counsel and Judge
Carlson at the hearing, Juror Kathy Poole was quoted in the article as stating that Gleeton's failure to
testify was "a major factor" in the jury's decision, and the jurors interpreted his silence as a lack of
remorse. Defense counsel argued that Juror Poole's statement showed that the jury failed to follow
the court's instructions on the defendant's right against self incrimination and the presumption of
innocence. Gleeton's attorney also informed the court that Juror Poole was quoted as saying that the
jury knew Gleeton was guilty when it went in for deliberations before even looking at the evidence.
The defense argued that this statement meant that the verdict wasn't based upon the evidence.
However, Judge Carlson found that reading the article as a whole, considering the jury instructions,
and based upon Miss. R. Evid. 606(b) and Mississippi case law, there was nothing improper about
the jury deliberations.

¶20. Rule 606(b) of the Mississippi Rules of Evidence governs inquiries into the validity of a verdict:

     Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any
     matter or statement occurring during the course of the jury's deliberations or to the effect of
     anything upon his or any other juror's mind or emotions as influencing him to assent to or
     dissent from the verdict or indictment or concerning his mental processes in connection
     therewith, except that a juror may testify on the question whether extraneous prejudicial
     information was improperly brought to the jury's attention or whether any outside influence was
     improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement
     by him concerning a matter about which he would be precluded from testifying be received for
     these purposes.

Miss. R. Evid. 606(b). We have previously held that Rule 606(b) precludes questioning jurors as to
their diligence in following the trial court's instructions. Folk v. State, 576 So.2d 1243, 1250 (Miss.
1991); see also Gladney v. Clarksdale Beverage Co., 625 So.2d 407, 418-19 (Miss. 1993). The
purpose of this rule is to allow jurors to "act freely and forthrightly" in deliberations without fear of
being interrogated about their actions. Folk, 576 So.2d at 1250. The presumption is that jurors
follow the court's instructions, "are fair-minded and conscientious and will do the duty the
constitution devolves upon them." Id.
¶21. Judge Carlson properly instructed the jury not to consider the fact that Gleeton did not testify as
evidence against him and not to draw any unfavorable inferences from his decision not to testify. The
court also instructed the jury on its duty to carefully weigh the evidence in reaching a verdict and on
the presumption of innocence. Gleeton's contention that the jury failed to follow these instructions
does not fall under the exceptions for investigating "extraneous prejudicial information" or "outside
influence" on the jury under Rule 606(b). Based upon this Court's previous interpretation of Rule
606(b), Judge Carlson was correct in finding that no inquiry into the jury's alleged refusal to follow
the court's instructions was required in this case. Denial of Gleeton's motion for a new trial was not
an abuse of discretion under these circumstances.

                                                   IV.

  THE COURT ERRED IN CALLING THE CO-DEFENDANT, ANTHONY CATHEY, AS
   THE COURT'S WITNESS, DURING THE STATE'S CASE IN CHIEF. THE COURT
   ERRED IN ALLOWING INTO EVIDENCE THE PRIOR TESTIMONY OF THE CO-
                    DEFENDANT, ANTHONY CATHEY.

                                          Standard of Review

¶22. In Peterson v. State, 671 So.2d 647 (Miss. 1996), this Court pronounced the standard of review
for the admissibility of evidence as follows:

     Under the Supreme Court's standard of review, the admissibility of evidence rests within the
     discretion of the trial court. However, this Court must also determine whether the trial court
     employed the proper legal standards in its fact findings governing evidence admissibility. If in
     fact the trial court has incorrectly perceived the applicable legal standard in its fact findings, the
     Court applies a substantially broader standard of review. However, a denial of a substantial
     right of the defendant must have been affected by the court's evidentiary ruling. Furthermore,
     the trial court's discretion must be exercised within the scope of the Mississippi Rules of
     Evidence and reversal will be appropriate only when an abuse of discretion resulting in
     prejudice to the accused occurs.

Peterson, 671 So.2d at 655-56 (internal citations omitted).

                                                   IV.

A. Court Calling Cathey as a Witness

¶23. The State filed a motion for the court to call Gleeton's co-defendant, Anthony Cathey, as the
court's witness on August 15, 1996. Judge Carlson decided to call Cathey as the court's witness to
allow both sides to cross-examine him due to Cathey's prior inconsistent statements. Rule 614 of the
Mississippi Rules of Evidence gives the trial court authority to call witnesses on its own motion or
upon motion by a party. Miss. R. Evid. 614(a). A party wishing to object to the court calling a
witness may object at the time the witness is called "or at the next available opportunity when the jury
is not present." Miss. R. Evid. 614(c).

¶24. This Court will reverse a case if the trial judge abuses the authority to call or question a witness
by abandoning his impartial position as a judge and assuming an adversarial role. West v. State, 519
So.2d 418, 422-24 (Miss. 1988). "We have made clear that we will not hesitate to reverse where the
trial judge displays partiality, becomes an advocate, or, in any significant way, conveys to the jury the
impression that he has sided with the prosecution." Layne v. State, 542 So.2d 237, 242 (Miss. 1989).
In the present case, Judge Carlson made every effort to maintain his impartiality. He instructed the
jury at great length both from the bench and in the written jury instructions to ensure that they
understood that his calling Cathey did not indicate any opinion regarding the merits of the case or any
favor to either side. He also carefully instructed the jury on its duty to weigh evidence and evaluate
witness credibility. Judge Carlson did not personally question Cathey, but merely called him as the
court's witness to allow both sides to cross-examine Cathey since his pre-trial statements and his
testimony at Gleeton's trial were contradictory and central to the case. We find that Judge Carlson
acted within his discretion when he called Cathey as a witness.

B. Admission of Cathey's Pre-trial Testimony

¶25. Over Gleeton's objections, Judge Carlson allowed the prosecution to enter into evidence
Gleeton's plea hearing transcript and sentencing hearing transcript. At trial and on appeal to this
Court, Gleeton has argued that allowing the transcripts to be admitted into evidence violated his right
to confront and cross-examine witnesses against him. Gleeton cites Seales v. State, 495 So.2d 475,
479 (Miss. 1986), to support his position that the confrontation clause works to restrict the range of
admissible hearsay. However, Cathey's prior statements are not hearsay:

     (d) Statements Which Are Not Hearsay. A statement is not hearsay if:

     (1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to
     cross-examination concerning the statement, and the statement is (A) inconsistent with his
     testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other
     proceeding, or in a deposition. . .

Miss. R. Evid. 801(d)(1)(A). Cathey's testimony at his plea hearing and sentencing hearing was given
under oath, subject to penalty of perjury, and subject to cross-examination both at the hearings and at
Gleeton's trial, where Cathey was called as a witness and gave contradictory testimony. The
statements do not fall under the definition of hearsay, and Gleeton had ample opportunity to cross-
examine Cathey. We find no error in the trial court's admission of the transcripts into evidence.

                                           CONCLUSION

¶26. Gleeton has failed to make any meritorious arguments on appeal. We therefore overrule all of
his assignments of error and affirm his conviction and sentence in this case.

¶27. CONVICTION OF CAPITAL MURDER AND CONSPIRACY TO COMMIT CAPITAL
MURDER AFFIRMED. LIFE SENTENCE WITHOUT POSSIBILITY OF PAROLE TO
RUN CONCURRENTLY WITH TWENTY YEAR SENTENCE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED.

PRATHER, C.J., PITTMAN, P.J., BANKS, McRAE, ROBERTS, SMITH, MILLS AND
WALLER, JJ., CONCUR.
