Easter v. State, 2002-KA-01344-SCT.

• Decision Date: 06 May 2004
• Docket Number: No. 2002-KA-01344-SCT.,2002-KA-01344-SCT.
• Citation: 878 So.2d 10
• Parties: Baron L. EASTER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

878 So.2d 10

Baron L. EASTER v. STATE of Mississippi.

No. 2002-KA-01344-SCT.

Supreme Court of Mississippi.

May 6, 2004.

Rehearing Denied August 5, 2004.

James A. Williams, Gretna, attorney for appellant.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

Before WALLER, P.J., EASLEY and DICKINSON, JJ.

EASLEY, Justice, for the Court.

PROCEDURAL HISTORY

¶ 1. On November 15, 2001, Baron L. Easter (Easter) was indicted by a Lauderdale County grand jury for the sell or transfer of 20.25 grams of cocaine to Agent Neil Grogan (Agent Grogan) of the Mississippi Bureau of Narcotics (MBN) and an unnamed confidential informant for $800, within 1,500 feet of a public park. The indictment also alleged that Easter had two prior convictions on felony drug charges and was therefore subject to enhanced sentencing under Miss.Code Ann. § 41-29-147 as a habitual offender under Miss.Code Ann. § 99-19-81 (Rev.2000). Attorney J. Steward Parrish (Attorney Parrish) was appointed to represent Easter.

¶ 2. Easter's trial was held on June 17 and 18, 2002, before Circuit Court Judge Robert W. Bailey. Easter had previously been granted a continuance on March 26, 2002, to allow him time to retain his own counsel. Before trial on June 17, 2002, Easter asked the trial court to allow him to represent himself. The trial court denied the request for a continuance based on the previous continuance. Easter agreed to allow Attorney Parrish to represent him. The trial court further expressed concern as to Easter's request to represent himself due to the extensive sentence he could face because of the enhancements sought by the State.

¶ 3. Due to the difficulty in representing Easter, the State and the defense, outside the presence of the trial judge, conducted plea bargain negotiations on the record before trial on June 17, 2002. The State's original plea offer was 20 years to serve as a habitual offender, meaning day for day. Attorney Parrish got the State to amend the plea offer to 15 years nonhabitual or 30 years with 17 suspended, 13 to serve and 5 years post-release supervision. Attorney Parrish advised his client to take the offer of 15 years as a non-habitual offender. Easter insisted on standing trial, rejecting his attorney's advice.

¶ 4. Easter stood trial, and the jury found Easter guilty of the sale of cocaine. Easter was sentenced as a habitual offender based on his two previous separate felony convictions of possession of cocaine on January 30, 1997, and delivery of marijuana on January 30, 1997. The trial court dismissed the State's enhancement request for sale of cocaine within 1,500 feet of a park. Easter was sentenced to serve a term of 40 years in the custody of the Mississippi Department of Corrections not to be reduced or suspended. The trial court ordered that Easter not be eligible for early release or probation in accordance with Miss.Code Ann. § 99-19-81 as a habitual offender. Easter was further fined $5,000 and assessed a $300 appearance bond fee, $100 crime lab fee and $248 court cost. Easter filed a motion for J.N.O.V. or for a new trial which was denied by the trial court. Easter now appeals to this Court.

FACTS

¶ 5. Agent Grogan testified that on May 22, 2001, he worked undercover with a confidential informant, Chris Thompson (Thompson), in Lauderdale County, Mississippi, to purchase cocaine from sellers in the area. Agents Allen Ward (Agent Ward) and James Regan (Agent Regan) also worked with Thompson on May 22, 2001. Thompson had previously been arrested for possession of cocaine, and he agreed to assist the MBN as a confidential informant in a buy-bust sting operation to get his drug source.

¶ 6. Thompson telephoned Easter to purchase $800 worth of cocaine. The meeting place was set at the Apple Dollar Store on Highway 19. Easter then telephoned Thompson back and changed the location to McDonald's. Both telephone conversations were recorded. Thompson testified that he and Easter knew each other's cell phone numbers. Thompson gave Easter's name to the MBN. Thompson had known Easter approximately a year and a half. Thompson stated that they referred to each other as "B" for Baron and "C" for Chris. Thompson testified he recognized and identified Easter's voice on the telephone. Agent Grogan testified that he was present when Thompson telephoned Easter. Thompson testified that the tape was an accurate and unaltered recording of the conversation. References to other transactions on the tape recordings were deleted based on the defense's objection before the tape was admitted. After the deletions, the defense did not object to the tape.

¶ 7. Before going to the exchange, Thompson and his vehicle were searched by one of the agents to verify that there were no drugs present. Thompson wore a wire transmitter to the buy.

¶ 8. Agent Grogan rode with Thompson to the buy. Agents Ward and Regan provided back-up. When Thompson and Agent Grogan arrived at the McDonald's parking lot, Thompson spotted Easter's vehicle next door in the parking lot at Trucker's Supply. Thompson pulled over to Trucker's Supply and parked next to Easter's vehicle, driver's side to driver's side. Agent Grogan gave Thompson the $800 to buy the cocaine. Thompson gave the money to Easter. Easter threw a zip-lock bag, containing aluminum foil wrapped around the cocaine, wrapped in a camouflage bandana. Thompson handed the cocaine to Agent Grogan.

¶ 9. Agent Grogan testified he was approximately 6 or 7 feet from Easter, and it was about 6:25 p.m. and still daylight outside. Agent Grogan identified Easter at trial as sitting at the counsel table. Thompson also testified that he had no doubt that it was Easter who was at the exchange. Thompson also identified Easter in the courtroom.

¶ 10. Brandi Goodman, with the Mississippi Crime Laboratory in Meridian, testified that her testing on the substance determined that the State's exhibit 2 contained cocaine with a total weight of 20.25 grams. Easter did not testify at trial, choosing to exercise his right to remain silent.

¶ 11. At the conclusion of the State's case, Easter made a motion for directed verdict that the State did not meet its prima facie burden as to the sale of cocaine or sale within 1,500 feet of a park. The trial court denied the motion as to the sale, but it sustained Easter's motion for directed verdict as to the sale within 1,500 feet of the park.

¶ 12. Easter was found guilty and was sentenced to an enhanced sentence as a habitual offender to 40 years in the custody of the Mississippi Department of Corrections. The trial court denied Easter's motion for J.N.O.V. or new trial. Easter now appeals to this Court raising the following issues:

I. Whether Easter was denied a fair trial as a result of the trial court's comments.

II. Whether the trial court should have granted a mistrial.

III. Whether there was credible, substantial evidence to support the jury's verdict.

IV. Whether the trial court violated Batson v. Kentucky.

V. Whether Easter received effective assistance of counsel.

LEGAL ANALYSIS

I. Trial Court's Comments

¶ 13. Easter argues that he was denied a fair trial based on comments made by the trial court during voir dire; Agent Grogan's testimony; and Thompson's testimony.

¶ 14. In Thompson v. State, 468 So.2d 852, 853-54 (Miss.1985), quoting Green v. State, 97 Miss. 834, 53 So. 415 (1910), this Court stated:

`It is a matter of common knowledge that jurors, as well as officers in attendance upon court, are very susceptible to the influence of the judge. The sheriff and his deputies, as a rule, are anxious to do his bidding; and jurors watch closely his conduct, and give attention to his language, that they may, if possible ascertain his leaning to one side or the other, which, if known, often largely influences their verdict. He cannot be too careful and guarded in language and conduct in the presence of the jury, to avoid prejudice to either party.'

The Court further stated:

The great danger, particularly in a criminal case, is that the weight and dignity of the court accompanies each question or comment, although not so intended by the judge, and are very likely to be interpreted by the jury as the court's approval of the witness and her testimony, thereby lending unity to it and thus diverting the jurors' attention from their responsibility of deciding the case from the evidence, untainted, as heard by them from the witness stand.

Thompson, 468 So.2d at 854.

A. Voir Dire

¶ 15. Easter contends that the trial court denied him a fair trial and unduly prejudiced his case by commenting during voir dire of the prospective jury panel as to "presumption of innocence." Easter alleges that this comment corroborated the description stated on close by the State, enhancing the State's position with the jury. In order to examine the alleged reversible error, it is necessary to see the trial court's remarks. The record reflects the following statement by the trial court:

Now, this is a criminal case. It's not a civil case. There are certain general concepts that apply in all criminal cases in our judicial system. The first concept deals with a term that you will hear used throughout the trial. You will also see it used in the written instructions on the law that will be given to you at the conclusion of the trial by — that will be given by the Court, and that term is called the "presumption of innocence." That is, every defendant is presumed to be innocent until they are convicted by a jury. And I make this statement to you because a lot of times, attorneys during voir dire before you've heard any evidence or received any testimony will ask you, how many of you think my client is or could be guilty because they're here on trial? And my answer to that is every defendant at this stage of the proceedings are presumed to be innocent until they're convicted by a jury. Obviously, you haven't heard any testimony, so technically if the trial was to stop

...