Ellis v. State

• Decision Date: 30 March 1995
• Docket Number: 92-KA-01071-SCT,Nos. 91-KA-00710-SC,s. 91-KA-00710-SC
• Citation: 661 So.2d 177
• Parties: Riley ELLIS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 177

661 So.2d 177

Riley ELLIS v. STATE of Mississippi.

Nos. 91-KA-00710-SCT, 92-KA-01071-SCT.

Supreme Court of Mississippi.

March 30, 1995.

Rehearing Denied Sept. 21, 1995.

Dissenting Opinions by

Chief Justice Hawkins and

Justice McRae on Denial of

Rehearing Sept. 21, 1995.

Sim C. Dulaney, Jr., Port Gibson, for appellant.

Michael C. Moore, Atty. Gen., Jackson, DeWitt T. Allred, III, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and PITTMAN and ROBERTS, JJ.

PITTMAN, Justice.

STATEMENT OF THE CASE

Riley Ellis was convicted on May 22, 1991, in the Circuit Court of Claiborne County, of the crime of sale of a controlled substance (cocaine), and was sentenced to a term of sixteen (16) years imprisonment. On June 27, 1991, the circuit court denied Ellis' original Motions for Judgment Notwithstanding the Verdict and New Trial.

On July 15, 1991, the appeal was certified by the circuit clerk, and thereafter, on October 21, 1991, Ellis filed an Extraordinary Motion for New Trial. Various motions to extend the briefing schedule in this Court were filed and ruled upon, and the circuit court initially ruled that it had been divested of jurisdiction in the case due to the perfection of the appeal. ¹ This Court, on February 25, 1992, entered an Order directing that a hearing be conducted in the circuit court on the Defendant's Extraordinary Motion for New Trial. That hearing was held on July 17, 1992, and on August 11, 1992, the circuit court entered its Order denying the Motion for New Trial.

On this appeal, Ellis presented the following issues:

I. THE TRIAL COURT ERRED IN PERMITTING A STATE'S WITNESS TO BE RECALLED FOR THE PURPOSE OF THE ADMISSION OF THE COCAINE INTO EVIDENCE.

II. THE TRIAL COURT ERRED IN DENYING THE MOTION FOR NEW TRIAL ON THE GROUND THAT THE STATE FAILED TO DISCLOSE TO THE DEFENDANT THAT THE DRUG ANALYST HAD BEEN DISMISSED FROM HIS JOB.

III. THE TRIAL COURT ERRED IN DENYING THE MOTION FOR NEW TRIAL DUE TO THE ALLEGATIONS OF MISHANDLING OF EVIDENCE BY THE AGENTS OF THE DRUG TASK FORCE.

We affirm the lower court as to all issues. The trial court has discretion to permit the recall of witnesses. As such, the Defendant was required to show an abuse of discretion which he failed to prove. Additionally, Ellis fails to show any prejudice resulting from the recall of James Day. As to the denial of a new trial, we find that the evidence of which Ellis complains holds only impeachment value; therefore, Ellis was not entitled to a new trial based on the "newly discovered" evidence. There being no issues with merit, we affirm the conviction.

STATEMENT OF FACTS

On February 21, 1991, James Day was an undercover agent employed by the North Central Narcotics Task Force, headquartered at that time in Winona, Mississippi. At the request of Claiborne County Sheriff Frank Davis, James Day went to Claiborne County to make undercover drug buys. On the night of February 21, 1991, at approximately 10:00 p.m., Day, accompanied by Raymond Mitchell, a confidential informant, and Angela Groves, a known user, went to a convenience store in Port Gibson known as the Shop-a-Minit or Conoco. Ellis, the Defendant, was in his car in the parking lot, and Day approached him and made a $20.00 purchase of crack cocaine. Other facts as necessary are presented during the discussion of the issues that follow.

DISCUSSION OF LAW

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED THE STATE TO RECALL JAMES DAY FOR THE PURPOSE OF INTRODUCING INTO EVIDENCE THE EXHIBIT MARKED FOR IDENTIFICATION DURING HIS FIRST APPEARANCE ON THE WITNESS STAND AS THE STATE'S PRINCIPAL WITNESS INTO EVIDENCE.

I.

Ellis asserted that it was error for the trial court to allow the prosecution to recall James This assigned error is without merit. Miss.R.Evid. 611(a) states:

Day to the witness stand for the purpose of admitting the cocaine into evidence. After making the drug buy from Ellis, Agent Day sealed the evidence in a plastic bag, initialled it, and took it back to the task force office. Another agent transported the evidence to the crime lab. On direct examination, Day identified the evidence, and the court at that time permitted it to be marked for identification only. Later, the State called as a witness Brady Downey from the crime lab. Based upon past experience and practice, it was the expectation of both the prosecutors and the trial judge that the evidence would have been retained at the crime lab after testing and that such evidence would have been brought to the courthouse and introduced through a crime lab witness. Because of a change in crime lab policies, however, this evidence had been returned by the crime lab to the task force, and it had been transported to the courthouse by Agent Day. The trial judge ruled, therefore, that Agent Day was the proper witness through whom to introduce the cocaine into evidence, and the trial judge permitted the State to recall Day to the witness stand for this purpose.

(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witness and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

In accord with 611(a), it is within the trial court's discretion to decide whether to allow a witness to be recalled to the stand. In the case sub judice, there was no showing of abuse of discretion nor did Ellis allege any prejudice by the recalling of Day. "We dispose of such contention by again observing that a trial is not a game but is a search for the truth." Brooks v. State, 172 So.2d 876 (Fla.Dist.Ct.App.1965). Therefore, we find this assigned error to be without merit.

II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO SUSTAIN THE APPELLANT'S EXTRAORDINARY MOTION FOR A NEW TRIAL BECAUSE OF THE STATE'S FAILURE TO DISCLOSE TO THE APPELLANT'S ATTORNEY THAT THE DRUG ANALYST WHO TESTED THE SUBSTANCE ADMITTED INTO EVIDENCE AGAINST THE APPELLANT AT HIS TRIAL HAD, SIX DAYS PRIOR TO THE APPELLANT'S TRIAL DATE, CONFESSED TO THE CRIME OF STEALING OR TAMPERING WITH DRUGS ASSIGNED TO THE ANALYST FOR TESTING AT THE MISSISSIPPI CRIME LABORATORY.

The cocaine involved in this case was analyzed at the Mississippi Crime Lab by Forensic Scientist Jon Maddox, whose report was dated April 24, 1991. On May 15, 1991, Jon Maddox confessed to the Mississippi Crime Laboratory investigators for Internal Affairs that he stole the drug Dilaudid from a case in the Crime Laboratory's vault.

Ellis' trial began on May 21, 1991, and on that day the State called as a witness Brady E. Downey, a Crime Laboratory forensic scientist. Although the record does not reveal when Ellis' attorney was advised of the substitution of Downey for Maddox, the record indicates that Ellis' attorney was aware, prior to Downey's testimony, that Downey was the substitute representative from the crime laboratory.

Downey brought with him the Crime Laboratory's file in this case, and he testified based upon the file, that the substance tested by Jon Maddox was cocaine. The defense accepted Downey as an expert in the area of forensic science. During the direct examination of Downey, the defense interposed objections at several points. However, each objection was made with regard to the chain of custody of the drugs. In fact, Downey testified that the evidence tested positive for cocaine without Ellis raising any objection. ²

                The trial judge took the objections as hearsay objections, and the court ruled, without any further disagreement on the part of the defense, that Downey's testimony as to the Crime Laboratory test results was admissible under  Miss.R.Evid. 803(6) and 703. 3  On cross-examination, Ellis' attorney did not question Downey as to the reliability of the test results or to the basis for Downey's expert opinion
                

When asked by the State, on direct examination, why Jon Maddox himself was not there to testify, Downey answered, "I was informed that he was unable to appear in court today. The reason exactly, was not given, and I was also informed that no one else at the Jackson Laboratory was able to come testify due to previous court appearances." On cross-examination, Ellis' attorney asked no questions about Maddox or about why Downey, rather than Maddox, was testifying.

This Court ordered this case be remanded to the trial court following the appeal of Ellis' conviction for the crime of the sale of cocaine on May 22, 1991, for a hearing on an Extraordinary Motion For A New Trial Based On Newly Discovered Evidence. One of the primary reasons that Ellis sought a new trial was the fact that the State failed to disclose why Maddox was unavailable to testify during trial. The hearing on the motion was held on July 17, 1992. At the hearing the following stipulation was made concerning the discharge of Jon Maddox:

1. On May 14, 1991, Jon Maddox was employed as a full drug analyst by the Mississippi Crime Laboratory.

2. Jon Maddox was trained, educated and qualified to test any type of substance admitted to the drug analysis section of the crime laboratory.

3. On May 14, 1991, Mr. Maddox was observed and accused of stealing drugs from a case in the Mississippi Crime Laboratory's benevolence [sic] vault.

4. On May 14, 1991, Mr. Maddox was suspended as a drug analyst with the crime laboratory pending an internal affairs investigation and a subsequent criminal investigation of the charges brought against him.

5. The suspension and investigation commenced on May 14, 1991.

6. District Attorneys representing the state in on-going cases, including the District Attorney of the 9th Judicial Circuit Court District of Mississippi, were given notice and advised of Mr. Maddox's unavailability to testify and further advised the crime laboratory would be glad to either reanalyze the...