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FRANK TALBERT MALONE v. STATE OF MISSISSIPPI

FEBRUARY 26, 1986

FRANK TALBERT MALONE
v.
STATE OF MISSISSIPPI



BEFORE WALKER, P.J.; HAWKINS AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This appeal is by the mastermind of a Gulf Coast diamond heist from his conviction as an accessory before the fact of armed robbery. Here he questions the trial judge's instruction of the jury regarding the elements of the offense charged, the prosecutor's innuendo that he is guilty by association with others, and the weight of the evidence. We find no error on three points tendered and affirm.

 II.

 A.

 At about 9:30 p.m. on the evening of January 16, 1982, Virginia Guilbeau returned to her home on Fire Tower Road in Hancock County, Mississippi, checked her mail, drove up to her

 door. She loaded her arms with purchases made that day as well as her purse and began to walk to her front door. Guilbeau was carrying a pistol at the time, as was her custom. As Guilbeau put the key in her front door, someone came up behind her and started beating her with a" slapjack ". The assailant, a lone woman, directed Guilbeau to" give me all of your diamonds "and to" lay down and don't move ". Guilbeau laid down and pulled her head up under her car," thinking that if they shot me anywhere, I would survive, other than my head ". The assailant took from Guilbeau thirteen diamond rings as well as a diamond watch and $3,000 in cash. One of the rings contained a 4.91 carat diamond with the estimated value of $65,000.

 After her assailant left, Guilbeau got in her car and drove to her sister's house and made three calls - to Jim Conley whom she thought her friend, to her lawyer, and to the sheriff's department. Guilbeau had known Conley for over ten years as he had worked with her husband in the contracting business. Guilbeau and her husband were separated (he was in the Philipines and the two were having marital difficulties), and Jim Conley had been a frequent visitor to Guilbeau's home. Guilbeau had extensive security devices at her house including burglar bars, an electric gate, and an alarm system which had to be turned off within seconds of unlocking the front door - all of which Conley was aware of. Conley was also aware of Guilbeau's practice of carrying a gun in her hand when traveling from her car to her front door. Guilbeau had talked to Conley on the morning of January 16, 1982, the day of the robbery and he was aware of her plans for the day - where she was going and when she was going there and when she intended to return home.

 Marilyn Page was arrested in Jackson, Texas, the following month. Page admitted that she was Virginia Guilbeau's assailant and implicated Frank Talbert Malone, Defendant below and Appellant here, in the jewelry robbery. The facts subsequently developed through Page include:

 - That in January of 1982 she was living in the Cherie Apartments in Pascagoula.

 - That she had known Frank Malone since February of 1979.

 - That Frank Malone called her on the evening of January 15, 1982, at home and asked her to come over to his house in Gulfport as early as possible on the next day.

 - That she and Robert Stewart went to Frank Malone's house about 9:30 on the morning of January 16th, the day of the robbery.

 - That she, Stewart and Frank Malone went to Sam Buchanan's trailer.

 - That she had never met Sam Buchanan before, nor Jim Conley who was also there.

 - That she and Jim Conley left the trailer and went to the Security Building to plan a robbery of Virginia Guilbeau in the Security Building.

 - That she refused to go through with the robbery at the Security Building at which point Conley took her to Guilbeau's home and then back to Buchanan's trailer.

 - That later that night Sam Buchanan drove her back to Virginia Guilbeau's for the purpose of getting her diamonds; Sam Buchanan dropped her off and waited down the road until the job was done at which time they returned to Frank Malone's house.

 - That she turned the diamonds over to Frank Malone and that Frank and Sam went through the contents of the purse.

 - That also at Frank Malone's house was a jeweler by the name of Dale and a girl named Betty.

 - That Frank Malone gave her five $100 bills for bringing the diamonds to him.

 - That Frank Malone and Dale Bissett began breaking down the diamonds, i.e. taking ...


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