Armstead v. State

• Decision Date: 11 August 2016
• Docket Number: No. 2015–KA–00224–SCT.,2015–KA–00224–SCT.
• Citation: 196 So.3d 913
• Parties: Perry ARMSTEAD v. STATE of Mississippi.
• Court: Mississippi Supreme Court

196 So.3d 913

Perry ARMSTEAD

v.STATE of Mississippi.

No. 2015–KA–00224–SCT.

Supreme Court of Mississippi.

Aug. 11, 2016.

Office of the State Public Defender by Erin Elizabeth Pridgen, George T. Holmes, attorneys for appellant.

Office of the Attorney General by Ladonna C. Holland, attorney for appellee.

EN BANC.

WALLER

, Chief Justice, for the Court:

¶ 1. Perry Armstead was convicted of two counts of sale of cocaine and was sentenced as a habitual offender and subsequent drug offender to thirty-two years' imprisonment without the possibility of parole. Armstead appeals his convictions to this Court, arguing that the was denied his constitutional right to confront the witnesses against him. Finding no error, we affirm Armstead's convictions and sentences.

FACTS & PROCEDURAL HISTORY

¶ 2. In April of 2013, the Oktibbeha County Sheriff's Department arranged two controlled purchases of cocaine from Perry Armstead. Confidential informant Shondra Hill was involved in both transactions. Hill initially was reluctant to act as an informant because she previously had been in a romantic relationship with Armstead, so Sergeant Steven Gant, who was in charge of the operation, enlisted Carrington Butler to act as a secondary informant. Sergeant Gant's plan was to have Hill introduce Armstead to Butler so that Armstead would be willing to sell drugs to Butler.

¶ 3. On April 16, 2013, Hill and Butler made their first purchase from Armstead. Hill and Butler were searched before the meeting, and Hill was fitted with an audiovisual surveillance device. Hill and Butler attempted to meet Armstead at the Camelot Apartments in Starkville, but Armstead refused to meet with Butler. Butler stayed outside while Hill went inside an apartment with Armstead. Once inside, Hill mentioned a “50,” which meant that she wanted half a gram of cocaine. Armstead then gave Hill a plastic bag containing a substance later identified as cocaine in exchange for fifty dollars. After this exchange, Hill and Butler met with Sergeant Gant and handed over the substance they had purchased from Armstead.

¶ 4. Two days later, on April 18, 2013, Hill and Butler arranged a second meeting with Armstead. Prior to this meeting, Hill and Butler were searched again, and Hill again was outfitted with surveillance equipment. Hill and Butler tried to meet with Armstead at a house in the Sunset Community in Starkville, but Armstead refused to meet with Butler yet again. Outside the house, Armstead handed Hill an envelope containing cocaine. In exchange, Hill gave Armstead forty dollars. Hill and Butler then returned Sergeant Gant and handed over the substance.

¶ 5. Sergeant Gant delivered the substances purchased by Hill and Butler to the Columbus Police Department's forensics lab for testing. The substances purchased on both occasions were determined to be cocaine.

¶ 6. On July 10, 2014, Armstead was indicted with two counts of sale of less than two grams of cocaine, in violation of Section 41–29–139 of the Mississippi Code

. Armstead's indictment charged him as a habitual offender and a subsequent drug offender.¹ Armstead's trial commenced on January 28, 2015. Both Sergeant Gant and Hill testified that Armstead had sold cocaine to Hill on April 16 and 18, 2013. The video recordings of both transactions were played for the jury, as well. The substance Hill purchased from Armstead on April 16, 2013, was admitted into evidence as State Exhibit 2. The substance purchased on April 18, 2013, was admitted as State Exhibits 6 and 7.

¶ 7. Claudette Gilman, a forensic scientist with the Columbus City Police Department, testified for the State and was accepted as an expert witness in the field of forensic science specializing in drug analysis. Gilman was one of the analysts who tested the substances Armstead sold to Hill. Gilman personally tested State Exhibits 6 and 7, and she acted as a “technical reviewer” of the testing procedures on State Exhibit 2. Gilman discussed the specific tests she performed on State Exhibits 6 and 7 and opined that State Exhibits 6 and 7 contained a total of .39 grams of cocaine. She also explained her procedure for reviewing the work of the analyst who tested State Exhibit 2, and she testified that she agreed with the analyst's conclusion that State Exhibit 2 contained .37 grams of cocaine. Gilman testified that the tests performed on the substances in question were reliable and repeatable and were the types of procedures generally performed by forensic analysts in identifying controlled substances. Armstead did not object at any point during Gilman's testimony, and he did not cross-examine her about the fact that she had not personally tested State Exhibit 2. The forensic reports containing the results of the testing on State Exhibits 2, 6, and 7 were not admitted into evidence.

¶ 8. At the conclusion of the trial, the jury found Armstead guilty of both counts of sale of cocaine. Armstead was sentenced, as a habitual offender under Section 99–19–81 of the Mississippi Code

and a subsequent drug offender under Section 41–29–147 of the Mississippi Code, to sixteen years' imprisonment without the possibility of parole for each count. The trial court ordered Armstead's sentence for Count II to run consecutively to the sentence for Count I.

¶ 9. Armstead now appeals his convictions to this Court, arguing that the trial court erred in allowing to Gilman to testify concerning the tests performed on State Exhibit 2.

STANDARD OF REVIEW

¶ 10. This Court generally reviews issues concerning the admission or exclusion of evidence for an abuse of discretion. Williams v. State, 991 So.2d 593, 597 (Miss.2008)

(citations omitted). However, constitutional questions are reviewed de novo. Smith v. State, 25 So.3d 264, 267 (Miss.2009).

DISCUSSION

Whether Gilman's testimony violated Armstead's constitutional right to confrontation.

¶ 11. Armstead argues that the State violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution by allowing Gilman to testify concerning State Exhibit 2, since she did not personally perform the testing of that substance. Armstead did not raise this issue at trial. In fact, he did not object at any point during Gilman's testimony. Accordingly, this issue is procedurally barred, and this Court is constrained to review Armstead's arguments under the plain-error doctrine. See Debrow v. State, 972 So.2d 550, 553 (Miss.2007)

(reviewing Confrontation Clause challenge for plain error, where the defendant did not raise the issue at trial). “The plain error doctrine requires that there be an error and that the error must have resulted in a manifest miscarriage of justice.” Williams v. State, 794 So.2d 181, 187 (Miss.2001) (citing Gray v. State, 549 So.2d 1316, 1321 (Miss.1989) ), overruled on other grounds by

Brown v. State, 995 So.2d 698, 703 (Miss.2008). “To determine if plain error has occurred, we must determine ‘if the trial court has deviated from a legal rule, whether the error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial.’ ” McGee v. State, 953 So.2d 211, 215 (Miss.2007) (quoting Cox v. State, 793 So.2d 591, 597 (Miss.2001) ). “Plain-error review is properly utilized for ‘correcting obvious instances of injustice or misapplied law.’ ” Smith v. State, 986 So.2d 290, 295 (Miss.2008) (quoting Newport v. Fact Concerts,

453 U.S. 247, 256, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) ).

¶ 12. Defendants in criminal cases have a fundamental constitutional right to be confronted with witnesses against them. U.S. Const. amend. VI

; Miss. Const. art. 3, § 26 (1890). “The right of a criminal defendant ... to cross examine the witnesses against him is at the heart of the confrontation clause, in that cross-examination is ‘the principal means by which the believability of a witness and the truth of his testimony are tested.’ ” Lanier v. State, 533 So.2d 473, 488 (Miss.1988) (quoting Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) ). Historically, the United States Supreme Court held that out-of-court statements did not offend the Confrontation Clause if they fit “within a firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). However, in Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004), the Court abandoned Roberts and held that an out-of-court “testimonial” statement of a witness who is absent from trial may be admitted into evidence only if the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. “Testimonial statements are those reasonably expected to be used ‘prosecutorally,’ such as confessions, affidavits, custodial police examinations, and depositions.” Rubenstein v. State, 941 So.2d 735, 754 (Miss.2006) (quoting Crawford, 541 U.S. at 51–52, 124 S.Ct. 1354 ).

¶ 13. While the Crawford Court did not exhaustively define the class of out-of-court statements which could be considered testimonial, the Supreme Court has had several opportunities to clarify Crawford as it applies to forensic evidence. First, in Melendez–Diaz v. Massachusetts, 557 U.S. 305, 308, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009)

, a drug trafficking case, the prosecution offered into evidence sworn “certificates of analysis” indicating that the substances seized from the defendant were cocaine. Under state law, certificates of this type were admissible without live testimony as “prima facie evidence of the composition, quality, and the net weight of the narcotic.” Id. Thus, the analysts who tested the substances were not called to testify at trail. Id. The Supreme Court found that the analysts' certificates fell within the “core class of testimonial statements” described in Crawford, as they contained “the precise testimony the analyst would be expected to provide if called at trial.” Id. at 310, 129...