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Fagan v. State11/18/2003
must be requested. When it does not and in fact may exacerbate the error, no procedural default occurs in refusing to have one given. Vickery v. State, 535 So. 2d 1371, 1380 (Miss. 1988).
. It is true that the trial judge is in the best position to determine the seriousness of the effect on a jury. Blocker v. State, 809 So. 2d 640, 643 (Miss. 2002). That premise, though, does not cancel our obligation deferentially to review the effect of trial errors. Once the trial was over and the complete evidence available to the jury was known, this error was too substantial. Knowing that the other clerks had cooperated and Fagan had not, knowing that each clerk was in a similar position to have made the conversion, and knowing that there were some credibility choices to make that would lead to a guilty or not guilty determination, the jury in reaching its verdict cannot reliably be said to have been untainted by this unquestionably inappropriate injection of the polygraph examination point. The "nature of the error and the circumstances attendant to its disclosure" are what lead us to conclude that reversal is required. Weatherspoon, 732 So. 2d at 163.
. Fagan's final argument attacks the lower court's denial of her motion for new trial. She contends that newly discovered evidence, namely the dismissal of Clarke County Justice Court Clerk Theresa Smith based on funds misappropriated after Fagan's termination, would likely produce a different result at a new trial. That is an important additional matter that shows the need for a new trial in light of the error regarding the polygraph examination.
. I would reverse and remand for a new trial or such other proceedings as are appropriate.
McMILLIN, C.J., CHANDLER AND GRIFFIS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.
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