Jackson v. State, 2015-KA-01240-COA

• Decision Date: 17 July 2018
• Docket Number: NO. 2015-KA-01240-COA,2015-KA-01240-COA
• Citation: 263 So.3d 1003
• Parties: Herman JACKSON Jr. a/k/a Herman Jackson III a/k/a Main a/k/a Main Love a/k/a Herman Jackson, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

263 So.3d 1003

Herman JACKSON Jr. a/k/a Herman Jackson III a/k/a Main a/k/a Main Love a/k/a Herman Jackson, Appellant

v.STATE of Mississippi, Appellee

NO. 2015-KA-01240-COA

Court of Appeals of Mississippi.

July 17, 2018

Rehearing Denied October 23, 2018

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER, GEORGE T. HOLMES, JACKSON, JUSTIN T. COOK

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, JACKSON

BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.

BARNES, J., FOR THE COURT:

¶ 1. A Coahoma County jury convicted Herman Jackson of possession of marijuana of more than thirty grams but less than one kilogram with intent to sell, transfer, barter, distribute, or dispense. The trial court sentenced him to ten years in the custody of the Mississippi Department of Corrections (MDOC) as a subsequent drug offender¹ and as a non-violent habitual offender. Jackson now appeals, raising several issues through his counsel and pro se.² Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In June 2013, a confidential informant (CI) told narcotics agents with the Clarksdale Police Department that Jackson possessed a large amount of marijuana and that he was selling it out of his home at 343-B Bolivar Street. Officers considered the CI reliable because the informant had provided information in numerous prior cases and was instrumental in helping to obtain prior convictions. Officers presented the CI's information to a judge and obtained a warrant to search Jackson's house. Officers then conducted "loose surveillance"³ on the house for approximately twenty-four hours, during which time Jackson did not enter or leave the house. Shortly thereafter, Jackson was seen driving within three blocks of his home. Knowing there was an active warrant for Jackson's arrest due to unpaid municipal fines,⁴ officers stopped him and transported him to 343-B Bolivar Street. Officers informed Jackson they were going to search his home. When asked for a key, Jackson stated he did not have one.⁵ Officers therefore kicked the door in and conducted a thorough search of the home while Jackson remained in the patrol car.

¶ 3. Even though the home was modest, numerous surveillance cameras were mounted outside to record the house's exterior area. Inside, there was a digital video recorder (DVR) connected to the video-surveillance system, showing the exterior of the house on four split screens on a monitor in real-time. On a living-room sofa, two clear plastic baggies containing a green leafy substance were found, as well as a significant amount of the same substance and some packaging materials in the bedroom on a dresser. Officers also seized from the bedroom a box of sandwich baggies, a set of digital scales, and the DVR system found in the closet. Additionally, they recovered several utility bills that were addressed to Jackson at this address, and Jackson's social-security card, which was lying on a living-room table. A ceramic container on top of the refrigerator in the kitchen was filled with sandwich baggies and a green leafy substance. Female clothing and cosmetics were also observed in the home, indicating a female apparently lived at the residence; however, a male's pair of pants was also observed and photographed.

¶ 4. After the search, Jackson was transported to the Clarksdale Police Department and booked. Jackson requested to use the telephone and made three calls, all of which were recorded without his knowledge and later admitted into evidence at trial.⁶ During the calls, Jackson made several statements indicating the house that the officers searched and the drugs were his. While officers did not witness the telephone calls, one officer identified Jackson's voice from the recordings.

¶ 5. A Coahoma County grand jury indicted Jackson for possessing more than thirty grams but less than one kilogram of marijuana with intent to distribute, in violation of Mississippi Code Annotated section 41-29-139(b)(1) (Rev. 2013).⁷ He was also indicted as a subsequent offender under Mississippi Code Annotated section 41-29-147 (Rev. 2013) and as a non-violent habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015).⁸

¶ 6. At trial, narcotics officers testified to the amount of marijuana seized. Eric Frazure, a forensic chemist at the Mississippi Crime Lab accepted as an expert in drug analysis, testified that based on his testing, the green leafy substance seized was marijuana. The jury was instructed on both the charged offense and the lesser-included crime of simple possession of marijuana in an amount of more than 250 grams but less than 500 grams. The jury found Jackson guilty as charged, and he was sentenced to ten years in the custody of the MDOC.

¶ 7. Additional facts will be discussed as they relate to the issues raised.

ANALYSIS

¶ 8. On appeal, counsel for Jackson raises six issues. Jackson's pro se brief supplements his appellate counsel's arguments and raises four more separate issues. We shall discuss each in turn, consolidating where issues overlap.

I. Police Department Telephone Calls

¶ 9. Jackson argues the trial court erred in denying his motion to suppress recordings of three telephone calls he made at the Clarksdale Police Department, which were admitted into evidence, because he claims the State's attempts to authenticate the recordings were insufficient. During these telephone calls, Jackson identified the house and the marijuana as his property. Jackson claims there was no evidentiary foundation for the conversation because no one at the police department testified that the machinery was in proper working order while recording, and no one was listening to the conversation to make sure it was accurately recorded.

¶ 10. The standard of review for the admissibility of evidence is abuse of discretion. Stromas v. State , 618 So.2d 116, 119 (Miss. 1993). Evidence must be relevant and properly authenticated to be admitted at trial. Id. at 118 (citing M.R.E. 401 & 901 ). "Authentication of evidence requires the offering party to lay a proper foundation." Riley v. State , 126 So.3d 1007, 1009 (¶ 7) (Miss. Ct. App. 2013) (quoting Wilson v. State , 775 So.2d 735, 740 (¶ 11) (Miss. Ct. App. 2000) ). The applicable version of Mississippi Rule of Evidence 901(a) provides that authentication is sufficient when it "support[s] a finding that the matter in question is what its proponent claims." One means of authenticating evidence "is through the testimony of a witness with knowledge ‘that [an item] is what it is claimed to be.’ " Riley , 126 So.3d at 1009 (¶ 7) (quoting M.R.E. 901(b)(1) ). Further, the applicable Rule 901(b) gives several examples of evidence that can be used for authentication in different circumstances:

(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

(6) Telephone Conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called

....

(9) Process or System. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

M.R.E. 901(b)(5)-(6), (9) (emphasis added).

¶ 11. The State satisfied the authentication requirement through the testimony of Officer Carl Hinton, who testified he was familiar with Jackson's voice on the recording, and identified it as his. Jackson argues this was insufficient to lay a proper foundation, but we disagree. Officer Hinton transported Jackson to the station and booked him, then Officer Hinton allowed Jackson to make three telephone calls. While Officer Hinton did not overhear the calls, he and Jackson were the only individuals in the area when the calls were made, and he observed Jackson ending a call. Further, Cindy Doss, an administrator with the police department, testified that all incoming and outgoing telephone calls at the police station are recorded. She explained the process for obtaining a copy of the recordings and that she made a copy of Jackson's telephone calls as requested by the investigators.

¶ 12. In support of his argument, Jackson cites Conway v. State , 915 So.2d 521, 526 (¶ 19) (Miss. Ct. App. 2005), where this Court found an edited videotape was admitted without proper authentication because the officer who testified to authenticate the footage never actually witnessed the crime scene. However, the admission of the videotape was deemed harmless error due to the overwhelming evidence of the defendant's guilt. Id. at (¶ 20). We find Conway is inapplicable here because Officer Hinton's identifying testimony was based on information within his knowledge—Jackson's voice—whereas in Conway the video was of the crime scene and never viewed by the authenticating officer.

¶ 13. We find the State's citation to Broadhead v. State , 981 So.2d 320 (Miss. Ct. App. 2007) analogous to this situation. There, the defendant argued that the admission of her recorded phone call from jail was improperly admitted because the State's authentication of the recordings was insufficient. Id. at 326 (¶ 24). Similar to this case, the State authenticated the recording through an officer testifying he was familiar with the defendant's voice and identified her voice in the recording. Id. at 327 (¶ 25). The officer also testified he was familiar with the phone system that recorded the inmates' calls. Id. Here, Officer Hinton identified Jackson's voice, and Doss testified about the process for obtaining copies of the recorded phone calls. The Broadhead court also cited Conway as inapplicable because an officer was familiar with the defendant's...