Gowdy v. State
| Decision Date | 04 December 1991 |
| Docket Number | No. 89-KA-0463,89-KA-0463 |
| Citation | 592 So.2d 29 |
| Parties | James E. GOWDY and John L. Gowdy v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Rogers J. Druhet and Leslie C. Gates, Meridian, for appellants.
Mike C. Moore, Atty. Gen., Jackson, for appellee.
Before DAN M. LEE, P.J., and ROBERTSON and McRAE, JJ.
I.
At its core, this sale-of-cocaine case concerns the Circuit Court's duty when, some two months prior to trial, it orders the prosecution "to make diligent efforts to obtain the address of the confidential informer" who set up the two sales, and where on the eve of trial, it becomes apparent the prosecution has done nothing and the informer is still missing, in the face of which the defense moves for a continuance. The Circuit Court displayed initial sensitivity to defendants' plight, but in the end, denied the motion. On today's facts, we hold this an abuse of discretion and reverse.
II.
First, the cast of characters:
James E. Gowdy, age 34 at the time of trial, and John L. Gowdy, age 31, are brothers having additional siblings, all of whom reside in Lauderdale County, Mississippi. James E. Gowdy and John L. Gowdy were the Defendants below and are the Appellants here.
Tim Rutledge and Joey Mays are both undercover agents associated with the Mississippi Bureau of Narcotics (MBN). Agents Mays and Rutledge participated in the purchase of cocaine from James Gowdy, a sale brother John Gowdy is said to have aided and abetted.
In a way, W.W. (Willie) Roland (sometimes "C.I. Roland") is our character of consequence. Roland was the not-so-confidential informant who knew the Gowdys and who directly facilitated and witnessed the contact between Agent Rutledge and James Gowdy, which is said to have resulted in two sales.
Lt. Robert Earl Pierce was district supervisor for MBN's office in Meridian. Agent Glen Knight was an MBN officer also assigned to the Meridian office. Lt. Pierce and Agent Knight served in a surveillance capacity in connection with the purported buy from the Gowdys. As will presently appear, they play a central (non)role in locating C.I. Roland.
On the evening of July 25, 1987, Willie Roland led Agents Rutledge and Mays, dressed as sailors, to a take-out restaurant in Lauderdale, Mississippi. 1 Roland approached a man who identified himself as "Clyde" and sought to buy some crack cocaine. "Clyde" left, advising that he would return in thirty minutes. At approximately 7:30, "Clyde" returned with James Gowdy, whom Roland immediately asked about a possible purchase. After some discussion, James Gowdy told Roland, Rutledge and Mays to follow him to another location. James got in a 1985 blue Chevrolet automobile driven by his brother, John, and the two drove to the Rock Lounge, still in Lauderdale County, followed by Roland, Rutledge and Mays. At this point, James told the others to stay put while he took John's automobile and left. During this time, John Gowdy stayed with Roland and the two conversed. All the while, undercover Agents Rutledge and Mays were nearby. At about 8:00 o'clock, James Gowdy returned and, after some further discussions, is said to have sold Agent Rutledge five pieces of crack cocaine in exchange for a one hundred dollar ($100.00) bill.
A little over an hour later, Roland, Rutledge, and Mays met with Lt. Pierce and Agent Knight at MBN's Meridian office and discussed what had transpired. The officers decided they should make another buy from James Gowdy, and, in short order, they drove back to Lauderdale to the Lee General Merchandise Store parking lot. According to Agent Rutledge,
We got to the store and ... [Roland] got out of the car and went into the crowd. James Gowdy then came back to my car on the driver's side. He told me he had one more dosage unit of crack cocaine left if I wanted it. I told him I did and I gave him a twenty dollar bill. He gave me the crack cocaine. We left about 9:46 p.m.
On November 23, 1987, the Lauderdale County grand jury returned an indictment charging James E. Gowdy with two counts of sale of cocaine, a Schedule II controlled substance. Miss.Code Ann. Secs. 41-29-115(A)(a)(4), and -139(a)(1) (Supp.1987). The indictment further charged John L. Gowdy with a single count of sale of cocaine.
On September 6, 1988, the Gowdys moved for an order that the prosecution disclose the name and address of the confidential informer. The prosecution promptly responded and advised the court and counsel that W.W. (Willie) Roland was the informer but gave no address. The defense pressed the matter, and on September 24, 1988, the Court held:
The defendants' motion for discovery of name and address of confidential informer is sustained. The state is directed to make diligent effort to obtain the address of the confidential informer, and if his address is ascertained, it shall promptly be furnished to the defendants. 2
The Circuit Court called the case for trial on November 14, 1988, having denied the Gowdys' pre-trial motion for a severance of the counts and charges. In due course, the jury returned a verdict, finding James E. Gowdy guilty of two counts of sale of cocaine and John L. Gowdy guilty of a single count of sale of cocaine.
The Circuit Court then sentenced James E. Gowdy to a term of twelve years imprisonment in the custody of the Mississippi Department of Corrections, with four years suspended and five years on probation. The Court further ordered James Gowdy to pay a fine of $1250.00. The Court sentenced John L. Gowdy to a term of eight years imprisonment within the custody of the Mississippi Department of Corrections, with four years suspended and five years on probation. The Court ordered that John Gowdy pay a $1000.00 fine.
Both Gowdys moved for a judgment of acquittal, notwithstanding the verdict or, in the alternative, for a new trial. The Circuit Court denied these motions in their entirety. This appeal has followed.
III.
We consider first the legal sufficiency of the evidence to undergird the judgments of conviction entered against the Gowdys. In the case of James L. Gowdy, we find competent and direct testimony by Agents Rutledge and Mays that on July 25, 1987, James Gowdy sold crack cocaine to Rutledge. The fact that James Gowdy took the witness stand and denied his guilt, challenging principally the prosecution's identification evidence, is beside the point. The evidence was such that reasonable and fair-minded jurors could have found James Gowdy guilty beyond a reasonable doubt of two counts of sale of cocaine. See, e.g., Gibson v. State, 580 So.2d 739, 741 (Miss.1991); Turner v. State, 573 So.2d 1335, 1337 (Miss.1990); Williams v. State, 463 So.2d 1064, 1068 (Miss.1985); Johnson v. State, 461 So.2d 1288, 1293-94 (Miss.1984); Sparks v. State, 412 So.2d 754, 756 (Miss.1982).
The appeal of John L. Gowdy is a bit closer. Still, the evidence, viewed in the light most favorable to the verdict, reflects that John Gowdy was driving his brother, James, to meet with Roland and the two agents for the purpose of making the sale. John then drove his brother to the Rock Lounge, where he remained with Roland, Rutledge and Mays while James went to fetch the cocaine, and John was present when James returned and completed the sale. John's defense is that he was there but had no idea what was happening and, furthermore, there was another Gowdy present, his brother, David, who did take part. Nevertheless, Agents Rutledge and Mays positively identified John as a participant, and his guilty knowledge may be fairly inferred on these facts. Reasonable and fair-minded jurors could fairly have found beyond a reasonable doubt that John L. Gowdy aided and abetted his brother, James E. Gowdy, in the sale of cocaine to Agent Rutledge. Miss.Code Ann. Sec. 97-1-3 (1972); Clemons v. State, 482 So.2d 1102, 1104-05 (Miss.1985); Williams v. State, 463 So.2d at 1066; Sanders v. State, 439 So.2d 1271, 1275 (Miss.1983); McGowan v. State, 375 So.2d 987, 990 (Miss.1979); Landers v. State, 304 So.2d 641, 642 (Miss.1974).
IV.
We turn now to a point of procedural fairness. The Gowdys charge that the Circuit Court abused its discretion when it refused to grant them a continuance of their trial in the wake of the prosecution's failure to disclose the whereabouts of C.I. Roland. They present the issue against the backdrop of the substantial, albeit unsuccessful, defense they made at trial. The Gowdys presented David Gowdy, a brother, who said he, not James, took part in the sale. They sought to prove a Tommy Earl Hopson was the actual seller. They called a former law enforcement officer to vouch for their character. In this setting, the Gowdys say the prosecution's default in its duties under the prior order, coupled with the Court's denial of a continuance, denied them a shot at the most critical witness in the case, C.I. W.W. (Willie) Roland. They say the Court's denial of their motion was an abuse of sufficient magnitude that their convictions should be reversed.
We are told at the outset we may not consider the point because, before the Circuit Court, the Gowdys failed to jump through said-to-be-requisite procedural hoops. What happened is this. Some nine weeks before trial, the Gowdys moved for discovery of the name and address of the confidential informant. More than fifty days remained before trial when the Circuit Court entered its due diligence order. When Roland's address or whereabouts were not forthcoming, the defense moved ore tenus for a continuance prior to the beginning of trial on the afternoon of Monday, November 14, 1988. The Circuit Court responded:
BY THE COURT: ... [M]y ruling is going to be at this time to take your motion under advisement and continue with the trial. If at any time I am convinced that a continuance would result in the physical presence of this additional witness and that this witness would in some way be material to the defense in this case, I may sustain your motion and...
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