Jackson v. State

• Decision Date: 20 February 1997
• Docket Number: No. 91-KA-00856-SCT,91-KA-00856-SCT
• Parties: Alvin Lee JACKSON and Larry V. Jackson v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 760

689 So.2d 760

Alvin Lee JACKSON and Larry V. Jackson v. STATE of Mississippi.

No. 91-KA-00856-SCT.

Supreme Court of Mississippi.

Feb. 20, 1997.

Donald Rafferty, Gulfport, for Appellant.

Michael C. Moore, Attorney General, Jeffrey A. Klingfuss, Sp. Asst. Attorney General, Jackson, for Appellee.

En Banc.

BANKS, Justice, for the Court:

We are compelled to reverse the convictions in this case because the defendants were tried, in absentia, in violation of our statutory law as most recently interpreted by this Court in Sandoval v. State. A recurring issue in this case is the decision of the trial court on the question of the legality of the search. We pass upon other dispositive issues and those likely to recur.

I.

This is an appeal from the final judgment and verdict of the Circuit Court of Harrison County, Mississippi, First Judicial District, wherein Alvin Lee Jackson and Larry V. Jackson, the defendants, were convicted of possession with intent to distribute under Miss.Code Ann. § 41-29-139(a)(1) (1972).

On March 29, 1989, law enforcement officers, specifically officer Revere Christopher, received information from a confidential informant that some individuals from Louisiana desired to sell a quantity of cocaine. The narcotics task force set up the arrest of defendants Alvin Jackson and Larry Jackson, with the participation of Boise Moore, the confidential informant. Officer Christopher was informed that there would be three cars following one another on Interstate 10. Moore would be in the lead car, a red Ford Mustang with a Louisiana tag and two black males would follow, with a Chrysler LeBaron taking the third position. The LeBaron was the car indicated and believed to have the drug package. From this information, the officers effectuated a plan of surveillance concerning the narcotics stop. The car was stopped and searched and the controlled substances were found.

On January 10, 1990, the grand jury indicted the defendants for possession of cocaine with the intent to transfer or distribute. Subsequent to the indictments, the defendants jointly filed a motion to suppress. A hearing was held on October 8, 1990, on the motion to suppress. By order dated October 8, 1990, this motion was overruled.

On October 9, 1990, a co-defendant, Leonard Harvey, pled guilty to a reduced charge of possession of a controlled substance. Defendants The Jacksons' second trial began on February 5, 1991, and concluded on February 6, 1991, with the jury finding the defendants guilty. Both defendants were sentenced to serve a term of twenty-five years in the custody of Mississippi Department of Corrections and both were fined $200,000. Aggrieved by the findings of the lower court, the Jacksons appealed raising a number of issues.

Alvin Jackson and Larry Jackson proceeded to trial which began on October 9, 1990. The trial ended in a mistrial on October 10, 1990. The amount of drugs offered into evidence did not conform to the evidence of the drugs allegedly seized. On February 4, 1991, the Jacksons re-submitted their motions to suppress the evidence. No hearing was held on these motions and no order was entered.

II.

The issue compelling reversal involves proceedings conducted in the absence of the defendants. The facts indicate that due to a brawl engaged in on the morning of trial, Alvin arrived at trial during selection of the jury panel and Larry arrived later during cross-examination of the State's second witness.

Defense counsel informed the court that defendants Alvin Jackson and Larry Jackson had a fist fight earlier that morning. As a result, neither defendant was present in the courtroom for voir dire to proceed. Counsel indicated his belief that Alvin Jackson would arrive by mid-morning and that Larry Jackson could not be found. The defense requested that the case be reset. The court declined to postpone the beginning of the trial and commented, "They knew when they were supposed to be here. I can't hold up the court proceedings because of the defendants' dispute between themselves and their failure to be here."

The Jacksons contend that they were denied their constitutional rights to confront their accusers and to be present at their trial under Miss. Const. Article III., § 26 (1890).

Miss.Code Ann. § 99-17-9 (1972), entitled Trial in the absence of accused, reads:

In criminal cases the presence of the prisoner may be waived, and the trial progress, at the discretion of the court, in his absence, if he be in custody and consenting thereto. If the defendant, in cases less than felony, be on recognizance or bail or have been arrested and escaped, or have been notified by the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be taken, or be in any way in default for nonappearance, the trial may progress at the discretion of the court, and judgment final and sentence be awarded as though such defendant were personally present in court.

This statute does not offend the dictates of the Mississippi Constitution. Williams v. State, 103 Miss. 147, 60 So. 73 (1912).

In Sandoval v. State, 631 So.2d 159 (Miss.1994) we construed the statute. In that case, a trial proceeded, and a conviction ensued, although the defendant was not present at any stage of trial. Citing a host of authority, we reversed the conviction, holding that "an accused felon present at the commencement of his trial may thereafter waive his appearance by absenting himself from the trial." (emphasis supplied). Sandoval, 631 So.2d at 164. See Gales v. State, 64 Miss. 105, 106, 8 So. 167 (1886) ("if after the trial commenced [defendant] voluntarily absented himself, or absconded, he must take the consequences of his bond being declared forfeited, and of the trial being concluded in his absence"); McMillian v. State, 361 So.2d 495, 497 (Miss.1978) ("Inasmuch as McMillian was present in court when the trial was begun and the jury examined, selected and sworn in, it is our opinion that he was in custody at the time he voluntarily left and fled and thus escaped"); Crosby v. United States, 506 U.S. 255, 262, 113 S.Ct. 748, 753, 122 L.Ed.2d 25, 33 (1993) (construing the language of Federal Rule 43 which permits trial of accused felons in absentia, the court ruled, "[t]he language, history, and logic of Rule 43 support a straightforward interpretation that prohibits the trial in absentia of a defendant who is not present at the beginning of trial"). This Court's prior decision in Samuels v. State, 567 So.2d 843 (Miss.1990) was superseded by In the present case, Larry arrived at trial during cross-examination of the State's second witness. Because he did not arrive until well after the commencement of trial, it cannot be said that he waived his right to be present at trial. Alvin arrived during the selection of the jury panel after voir dire was completed. Nonetheless, like Larry, Alvin was not present when trial commenced and cannot be deemed to have waived his right to be present. Since neither can be said to have waived his right to be present at trial, this case must be reversed for a new trial.

Sandoval to the extent that Samuels does not require a defendant to be present during the commencement of trial for his waiver to be effective.

III.

A pre-trial hearing was held on the motions of defendant Harvey and of defendants Alvin Jackson and Larry Jackson, to suppress all evidence seized as a result of the March 29, 1989, narcotics investigation. During this hearing, the State admitted that the stop of the defendants was a narcotics stop rather than a traffic stop. Defendants Alvin and Larry Jackson agreed to go forward with the motion to suppress hearing if the State made the informant available to the defense. The State informed the defendants that the confidential informant, Boise Moore ¹, was dead. Then, the defendants agreed to go forward "if the District Attorney's Office [was] willing to state that this is a probable cause case...." At this point, the lower court implicitly accepted this offer of the defendants, denied the request for continuance of Harvey, and moved forward on the motion to suppress.

The defendants contend that Mississippi law places the burden of proving that a search or a seizure was proper on the State. The State argues that the trial court found the defendants' motion to be vague; therefore, the trial court should be upheld on this point.

The threshold question is whether or not the motion to suppress was legally sufficient to warrant a suppression hearing. There is no motion found in the present record in order for this Court to review the issue of vagueness. The defendant bears the burden of designating the record. Lambert v. State, 574 So.2d 573, 577 (Miss.1990). The trial court found that the motion was vague and required the defendants to go forward. It is obvious to the Court that the defendants failed to make an adequate record of the proceedings prior to trial and now, on appeal, attempt to capitalize on the very ambiguity they created. Due to our lack of ability to review, this Court affirms the lower court's holding that the motion to suppress was vague. See McGowan v. McCann, 357 So.2d 946 (Miss.1978) (holding that remarks not made part of record could not be considered on appeal). Therefore, it was proper for the defendants to go forward at the hearing.

During the suppression hearing, two law enforcement officers who had participated in the investigation were called to testify. Officer Revere Christopher testified that on March 29, 1989, he received a call from a confidential informant, named Boise O'Neal Moore. Christopher relayed that Moore was a very reliable informant ² and that he had double checked the information regarding the defendants through the New Orleans Police Department and the Drug Enforcement Agency. Moore had informed Christopher that there were three cars which would be traveling through the Mississippi Gulf Coast area on...