Gayten v. State, 89-KA-1195
| Decision Date | 19 February 1992 |
| Docket Number | No. 89-KA-1195,89-KA-1195 |
| Citation | 595 So.2d 409 |
| Parties | Danny GAYTEN v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
En Banc.
BANKS, Justice, for the Court:
On petition for rehearing the opinion previously entered is withdrawn and the following is the opinion of the Court.
This case presents nettlesome and recurring issues concerning identification and the admissibility of conversations overheard through remote listening devices. We find the identification evidence particularly troublesome. In the end, however, its credibility and weight are determinations to be made by the finder of fact.
Danny Gayten was indicted for the unlawful sale of cocaine in violation of Miss.Code Ann. Sec. 41-29-139 (1972). Gayten was found guilty and sentenced to serve fifteen (15) years in the Mississippi Department of Corrections. He was also ordered to pay a fine of $5000.00. Gayten appeals, in forma pauperis. Finding his contentions without merit, we affirm.
Agent Frazier of the Mississippi Bureau of Narcotics obtained information from an informant, Harvey Sutton Jr., that Danny Gayten was selling narcotics from his residence which he shared with his mother, brothers and sisters. During a surveilled operation by the Mississippi Bureau of Narcotics, Mark Anderson, an undercover agent from the McComb Police Department purchased $50.00 worth of cocaine from an individual believed to be Danny Gayten. Two narcotic agents, Ronnie Frazier and Phillip O'Brien, observed Officer Anderson and the informant, Sutton, enter the Gayten residence. Officer Anderson was wired so that Agents Frazier and O'Brien could overhear the conversations occurring inside the house. Neither agent observed any transactions, drug related or otherwise, which occurred inside the house or saw any individuals other than Officers Anderson and Sutton.
Officer Anderson went inside the house with Sutton. Officer Anderson had never before seen Danny Gayten. After having a short conversation with two persons, Officer Anderson went to the kitchen and made a $50.00 purchase of cocaine from one of them. Then, he and Sutton left. The entire drug deal took approximately fifteen minutes.
After the drug transaction, Officer Anderson described the person from whom he purchased cocaine in a report by describing the person's clothes and describing the person as "20 to 22 years of age, five eight to five ten, 185 pounds, haircut real close to the scalp." Officer Anderson did not participate in Danny Gayten's arrest and at no time saw Danny Gayten until trial a year and four months later.
At trial, both Agents Frazier and O'Brien testified that they knew Danny Gayten, were surveillance officers listening by wire tap to the drug buy and "worked" this drug case against Danny Gayten. However, neither agent saw Danny Gayten in the Gayten house on May 11, 1988, or saw Danny Gayten sell cocaine to Officer Anderson.
Agent Frazier testified, over a hearsay objection, to conversations he overheard through the wiretap worn by Officer Anderson while making the drug buy. Agent Frazier testified that when the informant and Anderson entered the house, a person told the informant that if he, the informant, were alone, he would have sold him some drugs. However, that person refused to sell to Officer Anderson.
Then, a second person, whom Agent Frazier could not identify, struck up a conversation with Officer Anderson. Officer Anderson talked about some trophies on the mantel and asked whether the unidentified person played football at Brookhaven High. The second unidentified person, then, indicated that he would deal with Officer Anderson. The person asked Officer Anderson what he wanted, and Officer Anderson replied, "some caine." Soon after, Agent Frazier observed Officer Anderson leave the Gayten house. At no time during the conversation in the house was Danny Gayten's name mentioned.
Officer Anderson later testified and identified the defendant, Danny Gayten, as the person from whom he purchased the cocaine. Officer Anderson corroborated Agent Frazier's recollection of the conversation which occurred inside the Gayten residence.
On cross-examination, it was brought out that Officer Anderson did not know Danny Gayten prior to the incident in question. Anderson had not previously seen the person, or a picture of him. He was not asked to identify him, either by picture or in person, after the drug buy until a year and four months later when he testified at trial. Officer Anderson testified that on the night of the drug buy he attempted to identify the seller by name by engaging the person in a conversation about some trophies sitting on the mantel and asking whether the person played football at Brookhaven High. Anderson admitted that he did not look to see whose names were on the trophies. Though not written in Officer Anderson's description of the person from whom he purchased cocaine, Officer Anderson contended that he had also noticed for purposes of later identification that the subject was capable of growing a full beard as evidenced from shaving bumps on his chin and that he had wavy-type hair. Anderson testified that he went into the buy situation knowing that he would have to identify the seller and paid particular attention to the seller's face and characteristics in order to be able to do so. Officer Anderson was shown a photograph and asked to identify it and he stated that it was possibly the photograph of a Gayten brother. He stated positively, however, that whether the person on trial was Danny or Willie or someone else, he was definitely the person who sold him the cocaine.
The informant, Sutton, who accompanied Anderson and knew Danny Gayten, was no help to the state on the identification issue. Sutton testified that he did not introduce Officer Anderson to Danny Gayten and at no time saw Danny Gayten during the drug buy. Sutton claimed to have seen Officer Anderson enter the back of the house, but that he did not see the person with Officer Anderson and only had assumed that it was Danny Gayten.
When the state rested, Danny Gayten moved for a directed verdict on grounds that the state did not meet its burden of proof. In particular Danny Gayten alleged that Officer Anderson's identification was not adequate evidence for a jury to find beyond a reasonable doubt that Danny Gayten was the person who sold Officer Anderson cocaine. The court overruled the motion.
Danny Gayten then put on his case-in-chief. Danny first showed that he has eight brothers, some of whom are close in age and resemble Danny. He then elicited testimony from three witnesses to the effect that he was in Slidell, Louisiana, on May 11, 1988.
At the conclusion of the evidence Danny Gayten was convicted and sentenced to fifteen years. Danny Gayten, then, made a post trial motion for a new trial. The trial court overruled the motion.
On appeal Danny Gayten first contends that the trial court erred in overruling Gayten's motion for a new trial because of improper remarks made by the prosecution. During closing argument, the following exchange occurred:
[By The State:] I find it ironic that counsel has based his--seemingly his entire defense on the fact that Mark Anderson must be mistaken because he could not possibly remember over such a long period of time, being over a year, when, in fact, Counsel knows that he used his legislature--his membership in the Mississippi legislature, his privilege as a member of the legislature, to continue this case. I hope you folks don't think that the State has been sitting on its duff back here for a year or so just wasting time sitting around to try this case. The reason this case is now finally getting to you is because counsel used his privilege in the legislature--
[By Defense Counsel:] [I]'m going to object to counsel bringing up the legislature. This is misleading. That was an agreed judgment. Both the District Attorney's Office agreed to this. You are misleading these folks. Y'all had no objection to it. You can't win the case any other way, so you're going to try to mislead the jury.
By the Court: All right. Go ahead.
On appeal Gayten asserted that the trial court erred in overruling his motion for a new trial on grounds that the comments by the prosecution during closing argument were so improper as to prejudice Gayten's right to a fair verdict.
The comment made by the prosecution was improper. Gayten failed, however, to seek a ruling on the objection when the trial court instructed the state, "Go ahead." No definitive ruling was made and no corrective action was requested. Gayten thus waived this objection. Cole v. State, 525 So.2d 365, 369 (Miss.1987); Cummings v. State, 465 So.2d 993, 996 (Miss.1985). This assignment of error has no merit.
Danny Gayten next contends that the testimony by Agent Frazier was inadmissible hearsay. Agent Frazier testified to communications he overheard via a wiretap which Officer Anderson was wearing during the drug purchase. Agent Frazier testified to statements he heard made by the confidential informant; an unidentified male, believed to be Danny Gayten's brother, Rayray; and an unidentified person believed to have been Danny Gayten.
Without question Agent Frazier at no time saw Danny Gayten on May 11, 1988. Moreover, although Agent Frazier testified that he was working this case against Danny Gayten, Agent Frazier could not have known the person who sold the drugs was Danny Gayten because there was no identification at any time until the day of trial when Officer Anderson testified, and this was after Agent Frazier had finished giving his testimony.
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."...
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