Doby v. State

• Decision Date: 14 February 1990
• Docket Number: No. 07-KA-58771,07-KA-58771
• Citation: 557 So.2d 533
• Parties: Curtis Lee DOBY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 533

557 So.2d 533

Curtis Lee DOBY v. STATE of Mississippi.

No. 07-KA-58771.

Supreme Court of Mississippi.

Feb. 14, 1990.

William B. Sullivan, Laurel, for appellant.

Mike C. Moore, Atty. Gen. and Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and ROBERTSON and ANDERSON, JJ.

ROBERTSON, Justice, for the Court:

I.

Today's appellant challenges his conviction of the offense of unlawful sale of cocaine, upon which he has been sentenced to twenty years imprisonment, and presents numerous questions regarding the fairness of his trial. We have noted his points and that his trial was less than perfect. Reviewing the trial as a whole, we may say with confidence that the appellant's substantial right to a fair trial has not been impermissibly abridged. We affirm.

II.

Shortly after four o'clock in the afternoon on September 16, 1985, Donna Conner, an undercover agent for the Mississippi Bureau of Narcotics, together with an unidentified black female who was a confidential informant, left Meridian, Mississippi, in Conner's automobile and drove to a residence in Stonewall, Mississippi. Conner's mission was to purchase controlled substances from Curtis Lee Doby who Conner knew then as Curtis Cotton. Sgt. Dennis Wood acted as the agent in surveillance and followed Conner to Stonewall in another vehicle. Upon arrival in Stonewall, Sgt. Wood drove to a surveillance location while Conner and the confidential informant drove to the front of a brick house located on Reveria Road. At the time Agent Conner carried a micro-cassette recorder in her purse for use in recording any conversation that might take place.

Doby was standing in his front yard talking to some other people, as Agent Conner and the informant pulled up in front of his house. Doby came over to the car and got into the back seat on the passenger side, sitting directly behind Conner. Agent Conner asked Doby to sell her some cocaine. Doby said he had one-fourth of an ounce of cocaine, colloquially, a "quarter". Doby said the price would be $700.00, but when Agent Conner insisted on "a deal" he agreed to sell it to her for $650.00. At that time Doby got out of his car and went back inside the house. Doby returned a few minutes later and handed Agent Conner a clear plastic bag containing a white powdery substance later identified as cocaine. Conner counted out $650.00 and handed it to Doby. The confidential informant was present inside the vehicle during the entire conversation and was an eyewitness to the entire transaction. Agent Conner tape-recorded the conversations between herself, Doby and the confidential informant.

On March 11, 1986, the Clarke County Grand Jury returned an indictment formally charging Doby with the sale of approximately 7.0 grams of cocaine, a Schedule II controlled substance. See Miss.Code Secs. 41-29-115(A)(a)(4) and 41-29-139(a)(1) (Supp.1989). After several continuances, the case was called for trial on September 21, 1987.

The case for the prosecution consisted of the testimony of Agent Conner, surveillance sergeant Dennis Wood, and Steven Howard, a forensic chemist at the Mississippi Crime Laboratory. Doby offered no evidence in defense, and in due course, the jury found him guilty as charged. The Circuit Court sentenced Doby to twenty (20) years imprisonment, the first sixteen (16) years of which run concurrently with a sentence under which Doby was then held. ¹

Doby now appeals to this Court.

III.

Doby charges that the evidence against him was insufficient to support the guilty verdict returned against him and, accordingly, that the Circuit Court erred when it denied his post-trial motion for judgment of acquittal notwithstanding the verdict. This motion, of course, was but a renewal of Doby's request for a peremptory instruction at the end of all of the evidence and his motion for a directed verdict of acquittal at the end of the prosecution's case.

The point is controlled by Doby I v. State, 532 So.2d 584, 590-91 (Miss.1988). The evidence in Doby I was in one respect very similar to that in today's case. In Doby I, Doby was convicted of selling three grams of cocaine to Agent Conner, a conviction again obtained largely on the strength of the testimony of Agent Conner. In Doby I, the defendant himself took the stand in his own defense and, in addition, called four alibi witnesses who testified that on September 11, Doby was in Evanston, Illinois, visiting a friend. In this case, Doby offered no evidence in defense and, if anything, the evidence before us today considered as a whole is stronger supporting the verdict of guilty than that in Doby I. See also Clemons v. State, 482 So.2d 1102, 1105-06 (Miss.1985); Pate v. State, 419 So.2d 1324, 1326 (Miss.1982). The assignment of error is denied.

IV.

Doby complains of the Circuit Court's refusal to order a mistrial by reason of a said-to-be prejudicial comment of a prospective juror at voir dire. What happened is this: The Court, in preliminarily qualifying the prospective jurors, asked one of the standard questions: Did anyone on the jury panel know the defendant, Curtis Lee Doby? One of the jurors, Terry W. Herring, answered in open court that he sat as a juror at Doby's first trial for the sale of cocaine. ² Herring did not indicate the outcome of that trial, nor did he say whether the jury he sat on heard an earlier trial of the present charge which may have ended in a mistrial or whether that charge arose from a separate incident. Upon timely objection, the Circuit Court considered the matter and denied Doby's motion for mistrial on grounds that juror Herring "didn't indicate whether the defendant had been convicted or not, just simply said that he was a juror on a case where he had been tried." In fact, Herring was not reached on the jury list and did not serve on the jury. The Court said that it would have been willing to excuse Herring had he been reached but that under the circumstances, "I don't feel that there's any harm done."

There is no suggestion Doby requested that any cautionary instruction be given to the other jurors or that the Court gave any such instruction sua sponte. In fact, the Circuit Court's response to Herring's comment appears a bit casual (insofar as the record reflects). Contrast Irving v. State, 361 So.2d 1360, 1368 (Miss.1978), wherein a prospective juror volunteered "Judge, the murdered man is my brother." The Irving court immediately excused the juror, and there followed an extensive voir dire (extending to forty-one pages in the record) to assure that no member of the jury panel had been tainted by the remark.

In the end, the Circuit Court instructed the jury to determine its verdict "from the evidence in this case." If Juror Herring's comment had inflicted substantial and legally cognizable prejudice, however, this instruction would have had little curative power, as its language was remote in time and general in form. Contrast Davis v. State, 530 So.2d 694, 697 (Miss.1988).

On appeal, Doby invokes the principle underlying our familiar rule that at trial an accused's involvement in other crimes is irrelevant, with certain exceptions not relevant here. See Rule 404(b), Miss.R.Ev. We have reversed drug convictions where witnesses suggested that the defendant had been involved in other crimes for which he was not then on trial, both before Rule 404(b), e.g., Sumrall v. State, 272 So.2d 917, 919 (Miss.1973), and since. Darby v. State, 538 So.2d 1168, 1173-74 (Miss.1989). The matter concerns us, for after Herring's remark there is little likelihood the jurors who heard the case may have forgotten it. Herring's comment may have had a particular potential for prejudice in that it may have suggested to the jury panel Doby had a prior involvement in a sale of cocaine, the same offense for which he was about to be put on trial.

The prosecution responds, citing Holifield v. State, 275 So.2d 851, 856-57 (Miss.1973). In Holifield the Court held a juror's untoward comment about a man being shot and about some burglaries of "no prejudicial effect" because the juror's comment did not suggest that the accused may have been involved in other offenses. 275 So.2d at 855-56. Today's case is precisely the contrary. Juror Herring's comment did suggest that the accused may have been involved in another offense, identical to the offense for which he about to be put to trial.

We find this assignment altogether disturbing. There are clearly cases where an extemporaneous remark by a prospective juror may be of such gravity that the Court should declare a mistrial. See, e.g., Smith v. State, 198 So.2d 220, 224 (Miss.1967). At the very least great care should be taken to assure that the remaining panel members have not been tainted. The record before us falls short of mandating reversal.

Peterson v. State, 518 So.2d 632 (Miss.1987) is not unlike today's case. In Peterson, "during the voir dire of a juror, White, ... the State asked the juror ... do you know Birdlegs (Alexander), to which the juror responded, 'I know his wife and I have come to the jail with her before,' or words to that effect, whereupon, attorney for the defendant approached the bench and requested that a mistrial be declared because of the reference made by the juror as to the jail....." Peterson, 518 So.2d at 638. In the peculiar state of the Peterson record, the Court said, "Based on what we have before us, we cannot say from the evidence in this record that the trial judge abused his discretion in denying Peterson's motion for a mistrial." Id. The Peterson Court, however, reversed on other grounds.

Under the circumstances, Doby's remedy was a request of the Circuit Court that the jurors disregard the comment and give it no effect in deliberating upon the evidence and their verdict. The lack of a verbatim transcript precludes our finding that the content and setting of Juror Herrring's remark were sufficiently egregious that mistrial be mandated. Comp...