                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 95-CT-00194-SCT
COREY BANKS
v.
STATE OF MISSISSIPPI
                         ON PETITION FOR WRIT OF CERTIORARI
DATE OF JUDGMENT:                              02/03/95
TRIAL JUDGE:                                   HON. KEITH STARRETT
COURT FROM WHICH APPEALED:                     LINCOLN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        WILLIAM D. BOERNER
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL
                                               BY: BILLY L. GORE
DISTRICT ATTORNEY:                             DUNN LAMPTON
NATURE OF THE CASE:                            CRIMINAL - FELONY
DISPOSITION:                                   REVERSED AND RENDERED - 06/11/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                9/3/98




     EN BANC.


     SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:




                                            Introduction

¶1. This case is before the Court sitting en banc on a petition for writ of certiorari filed by Corey
Banks. Banks was convicted of conspiracy to sell cocaine and sentenced to serve 20 years and pay a
fine of $30,000. The Court of Appeals affirmed his conviction and sentence. Banks's motion for
rehearing was denied and he filed a petition for writ of certiorari which this Court granted. Finding
that the State's proof at trial was insufficient to support a conviction as charged by the indictment,
Banks's conviction is reversed and rendered.

                                                Facts

¶2. Banks was jointly indicted with nine others for conspiracy to sell cocaine. The conspiracy was
alleged to have taken place on or before September 6, 1994. Horace McMorris and Anthony Snell,
two co-indictees, testified for the State. McMorris testified that Banks had a monetary stake in eleven
ounces of cocaine that McMorris purchased in Houston and planned to divide with Banks until
McMorris was caught with the cocaine in the New Orleans airport. McMorris also testified that
Banks was present in 1992 when he purchased cocaine in Jackson. Snell testified that he would get
the cocaine to Brookhaven and that Banks would sell it for him. Timothy Cooper, another State
witness, testified that Banks was his cocaine supplier and that Banks was supplying cocaine to others
in the Lincoln County area. Banks did not testify or produce any witnesses.

                                 Issues Raised for Certiorari Review


     I. THE COURT OF APPEALS IS IN CONFLICT WITH DECISIONS OF THE
     SUPREME COURT OF THE STATE OF MISSISSIPPI.

     II. THE COURT OF APPEALS HAS FAILED TO PROPERLY APPLY THE
     CONTROLLING CONSTITUTIONAL PROVISION PERTAINING TO
     INDICTMENTS.

     III. THIS APPEAL INVOLVES FUNDAMENTAL ISSUES OF BROAD PUBLIC
     IMPORTANCE REQUIRING DETERMINATION BY THE SUPREME COURT.

                                        Analysis and Authority

¶3. In his petition for writ of certiorari, Banks raises three issues. This Court will only address the
second issue finding that it is dispositive.

     THE COURT OF APPEALS HAS FAILED TO PROPERLY APPLY THE
     CONTROLLING CONSTITUTIONAL PROVISION PERTAINING TO
     INDICTMENTS.

¶4. The indictment reads as follows:

     The Grand Jurors . . . upon their oaths present that Anthony Snell, Napoleon Douglas also
     known as Polo, Horace McMorris, Orlando Byrd, Fernando Byrd, James Magee, Jr. also
     known as Jamie, Corey Banks, Phyllis Wilson, Felecia Beasley, Larry Gatlin, late of county
     aforesaid, on or before the 6th Day of September, 1994, in Lincoln County, Mississippi, and
     within the jurisdiction of this court, did wilfully, unlawfully, feloniously and knowingly conspire
     and agree, each with the other, and with some other person or persons to the grand jurors
     unknown, to wilfully, unlawfully, feloniously and knowingly commit the crime of unlawful sale
     of cocaine, contrary to and in violation of Sections 97-1-1 and 41-29-139 . . . .

¶5. Banks contends that the State failed to prove a conspiracy between all the individuals listed in the
indictment. Banks claims that the trial judge erred in failing to grant his motion for directed verdict,
peremptory instruction, and/or new trial.

¶6. The Court of Appeals affirmed holding:

     "The major purpose of an indictment is to furnish the accused such a description of the charges
     against him as will enable him to adequately prepare his defense." King v. State, 580 So. 2d
     1182, 1185 (Miss. 1991). See also Cantrell v. State, 507 So. 2d 325, 329 (Miss. 1987) ("The
     rule in this state is that an indictment which states the statutory language is generally sufficient
     to inform the accused of the charge against him."). In the present case, this Court has perused
     the indictment and concludes that it comported with relevant law--i.e., Banks was sufficiently
     apprised of the offense with which he was charged. We find that the failure of the State to
     prove that Banks conspired with each of the named individuals in the indictment to be of no
     import. As the State correctly points out, a conspiracy is complete when two or more persons
     combine and agree to accomplish an unlawful purpose. Thomas v. State, 591 So. 2d 837, 839
     (Miss. 1991). It was not necessary for the State to prove that Banks conspired with each of the
     other nine co-conspirators.

¶7. The dissent of the Court of Appeals written by Judge McMillin agreed that the acquittal of one
member of a multi-person conspiracy does not prevent the conviction of the remaining conspirators.
Judge McMillin, however, was concerned that the indictment failed to apprise the defendant of the
crime with sufficient specificity to allow him to mount a meaningful defense.

     The majority sustains the conviction in part upon an episode involving McMorris and Banks at
     the New Orleans Airport where McMorris was arrested in possession of $6,000 worth of illegal
     drugs, the purchase of which McMorris claimed he and Banks had jointly financed for
     subsequent distribution in Lincoln County. There is not a scintilla of evidence that any other
     individual named in the indictment had any knowledge of this venture, much less participated in
     it in any manner. Nor is there any hint that this drug purchase was a part of an existing over-
     arching plan for drug dealing involving anyone other than McMorris and Banks. Thus, this
     evidence proved, at best, a separate conspiracy that could not have involved any other persons.
     To charge up to ten other people with participating in this conspiracy is certainly misleading and
     would not seem to fairly inform the defendant of what conspiracy the State intended to prove.

     ....

     . . . [I]t would appear that the State may have proven sufficient facts to establish a combination
     or conspiracy of some nature between Snell and Banks to deal in illegal drugs. However, . . . I
     have concluded that such proof, isolated to this one individual, was materially at odds with the
     essential nature of the crime charged in the indictment. Therefore, though the State may have
     proved a crime involving Snell and Banks, it was a different crime, based on any fair analysis,
     from the one set out in the indictment.

¶8. The State's three main witnesses against Banks testified as to at least four incidents where Banks
was involved in a conspiracy to sell cocaine. These four incidents, however, spanned a two and one-
half year time frame. Judge McMillin points out the difficult situation facing Banks in trying to
prepare his defense given that the indictment also alleged that he conspired with seven other people
(excluding McMorris and Snell) and that Cooper was not even a co-indictee. In his dissent, Judge
McMillin recommended that the case be reversed due to the "substantial variance between the proof
at trial and the nature of the charge in the indictment."

¶9. McMorris testified that Banks was with him when he purchased cocaine in Jackson in 1992. At
the time of the incident at the New Orleans airport in October of 1993, McMorris told authorities
that Banks was merely there to pick him up. The authorities also searched Banks's car and found no
sign of drugs. At trial, however, McMorris testified that Banks had an interest in the cocaine which
was seized at the airport. McMorris had been incarcerated in Louisiana since the incident at the New
Orleans airport.

¶10. Cooper was arrested in December of 1993 for the sale of cocaine. Cooper testified that he
purchased the cocaine from Banks the night before his arrest. Cooper stated that he got into a car
with Banks and Snell, and that Banks sold the cocaine to Cooper while Snell drove the car.
According to Cooper, he had been selling cocaine since October 1, 1993, and Banks and Snell were
his suppliers.

¶11. Snell testified that he and Banks shared a house together and that he and Banks supplied cocaine
to the Brookhaven area. Snell stated that he and Banks traveled to California in February, March, or
April of 1994, where he purchased cocaine with money that he borrowed from Banks. Snell stated
that Banks knew he was using the money to purchase cocaine. Snell also stated that Banks assisted
him in the sale of cocaine on August 8, 1994. Prior to August 8, 1994, Snell stated that Banks sold
cocaine to Latron Dixon "[j]ust about on a daily basis."

¶12. There is sufficient evidence to prove that a conspiracy existed between Snell and Banks to sell
cocaine between October of 1993 and August of 1994. The existence of this conspiracy is
corroborated by Cooper's testimony. There is also sufficient evidence to support the existence of a
conspiracy between McMorris and Banks.

¶13. The problem as pointed out by Judge McMillin is that there is nothing to connect these two
conspiracies. It is difficult to determine whether the incident involving McMorris was used to prove
Banks's participation in the charged conspiracy or merely to show Banks's propensity to participate in
such crimes. In his dissent, Judge McMillin stated that "the purpose of an indictment is to fairly
apprise the defendant of the crime with which he is charged with sufficient specificity to permit him
to mount a meaningful defense and to avoid double jeopardy should he be acquitted." (citing United
States v. Gordon, 780 F.2d 1165, 1170 (5th Cir. 1986)).

¶14. In United States v. Ellender, 947 F.2d 748 (5th Cir. 1991), the defendants challenged the
sufficiency of the indictment for failure to specify the time, location, and precise dates of acts
involved in the conspiracy. The Fifth Circuit held that the indictment language "'commencing in or
about the month of July, 1982, and continuing through the month of August, 1984 . . .'" was
sufficient. Id. at 755-56. "[A]n indictment need not allege an overt act in furtherance of the
conspiracy if the indictment alleges a conspiracy to distribute drugs, the time the conspiracy was
operative, and the statute allegedly violated." United States v. Khan, 728 F.2d 676, 681 (5th Cir.
1984) (emphasis added). The indictment in the case at hand does not provide any time frame to
indicate when the conspiracy began. It merely states that the conspiracy was entered into on or before
September 6, 1994. The indictment was filed on September 9, 1994. Essentially, the indictment
provides that Banks committed his crime sometime prior to his being indicted. In effect, the State has
provided no time frame for the commission of the crime.

¶15. This Court finds that there is a material variance between the indictment and the State's proof.
Although there was sufficient proof that conspiracies existed between Snell and Banks and McMorris
and Banks, there was no proof that Banks conspired with any of the other indictees. Judge McMillin
reasoned that "[w]hile the State may be permitted to charge a conspiracy in somewhat general terms,
it would appear . . . that, by the conclusion of the State's proof in its case-in-chief, there should
emerge a reasonably discernable picture of the State's theory of its case."

¶16. This Court finds that the proof at trial was insufficient to support a conviction as charged by the
indictment. Banks's conviction is hereby reversed and rendered.

¶17. REVERSED AND RENDERED.

PRATHER, C.J., PITTMAN, P.J., BANKS, McRAE AND WALLER, JJ., CONCUR. SMITH,
J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS AND
MILLS, JJ.




     SMITH, JUSTICE, DISSENTING:




¶18. The majority writes that there is only sufficient evidence to prove that a conspiracy existed
between Snell and Banks to sell cocaine between October of 1993 and August of 1994. The majority
also writes that there is sufficient evidence to support a conspiracy between McMorris and Banks.
But, the majority concludes that there is nothing to connect these two conspiracies, thus ultimately,
Banks cannot have been fairly apprized of the crime with which he is charged with sufficient
specificity to permit him to mount a meaningful defense. I respectfully disagree. The conspiracies
need not be connected.

¶19. The Court of Appeals correctly held that the State did not have to prove conspiracy with each of
the nine individuals named in the indictment. A conspiracy is complete when two or more persons
combine and agree to accomplish an unlawful purpose. Miss. Code Ann. § 97-1-1 (1994) . This
Court has long adhered to the statute. See Thomas v. State, 591 So. 2d 837, 839 (Miss. 1991). See
also Clayton v. State, 582 So. 2d 1019 (Miss. 1991); Taylor v. State, 536 So. 2d 1326, 1328 (Miss.
1988). Here, the State merely alleged more than it was required to prove against Banks. The primary
evidence elicited against Banks consisted of the testimony of three convicted felons: McMorris,
Cooper, and Snell. McMorris implicated Banks due to a monetary stake in eleven ounces of cocaine
that McMorris claimed to have purchased in Houston and that he was supposed to divide with
Banks. Cooper testified that Banks was his sole supplier of cocaine and that Banks also supplied
cocaine to others in the area of Lincoln County. Finally, Snell claimed that he delivered drugs to
Brookhaven and that Banks would subsequently sell them for him. There is more than sufficient
evidence consistent with the verdict that would indicate these individuals were working in conspiracy
to traffic in drugs in Lincoln County and that Banks was the principal. Clearly, a conspiracy was
proven between Banks and Snell. That is all that is required by statute and by case law. An
"agreement need not be formal or express, but may be inferred from the circumstances, particularly
from declarations, acts and conduct of the alleged conspirators." Thomas, 591 So. 2d at 839 citing
Clayton, 582 So. 2d at 1022; Nixon v. State, 533 So. 2d 1078, 1092 (Miss. 1987)). Here, the
circumstances and acts testified to by the state's witnesses clearly were sufficient to establish a
conspiracy.

¶20. I respectfully dissent.

ROBERTS AND MILLS, JJ., JOIN THIS OPINION.
