Johns v. State, 89-KA-0705
| Decision Date | 11 December 1991 |
| Docket Number | No. 89-KA-0705,89-KA-0705 |
| Citation | 592 So.2d 86 |
| Parties | Charles JOHNS v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Herman F. Cox, Jimmy D. McGuire, McGuire & Cox, Gulfport, for appellant.
Mike C. Moore, Atty. Gen., John R. Henry, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROY NOBLE LEE, C.J., and PRATHER and PITTMAN, JJ.
I. INTRODUCTION
Charles Johns was indicted on August 25, 1988, in Pearl River County for the sale of cocaine in violation of Miss.Code Ann. Sec. 41-29-139(a)(1) and (b)(1) (1972, as amended), a schedule II controlled substance under Miss.Code Ann. Sec. 41-29-115(A)(a)(4), and as a second and subsequent offender under section 41-29-147. 1 After a jury trial, he was convicted and sentenced to twenty-seven (27) years in the custody of the Mississippi Department of Corrections (MDC). Due to the convicted accomplice's testimony concerning her conviction on the same offense, and the ineffective assistance rendered by trial counsel, this Court reverses the conviction and remands for a new trial.
I.
Charles Johns was indicted on August 25, 1988, for an offense allegedly committed on September 22, 1987, was tried on April 6, 1989, found guilty and has appealed to this Court.
Due to this Court's disposition of this case and the possible retrial, the facts are summarily set forth so as not to influence any future proceedings.
On September 21, 1987, an agent with the Mississippi Bureau of Narcotics (MBN) called Terrilyn Smith at her apartment in Picayune, Mississippi, to arrange the purchase of "an eight ball" of cocaine. The next day the agent went to Terrilyn Smith's apartment, as they had agreed the previous day, and told him she had not been able to get in touch with her supplier.
Terrilyn Smith made several phone calls and left her apartment several times to find her supplier. Finally, a red and white pickup truck pulled up at Terrilyn Smith's apartment. She went out and talked to the man driving it, and then returned to the apartment as the man drove off. She said that was her supplier and the cocaine would be ready in about ten to fifteen minutes. She left and came back with the cocaine, and the agent left the apartment.
The agent and another surveillance agent had observed the man driving the red and white pickup truck and identified the driver as Charles Johns, the defendant.
Terrilyn's account varies slightly from the agent's. She testified that when Charlie Johns drove up to the apartment and she talked to him, he told her Roger Fox, his co-worker and her boyfriend, would be home late from work. At that time she told him she needed an eight ball of cocaine. He replied he did not have it, but for her to come get it in about fifteen minutes.
On cross-examination, it was revealed that Terrilyn Smith had already been tried and found guilty for her actions in this transaction and sentenced to ten years. According to her, the only deal that had been made with the state was that if she would drop the appeal of her case, the state would not prosecute her on the second charge pending against her.
Charles Johns' version varies from both of the above. As Charles Johns left work, he drove to Terrilyn Smith's apartment, at Roger Fox's request, to tell her that Fox would be late getting home. Terrilyn Smith came out of the apartment and talked to him. He delivered Fox's message and drove home. He denied selling her any cocaine and denied she came to his house that afternoon to purchase any cocaine.
II. DISCUSSION OF THE ISSUES
A.
This Court has long held that the testimony of an accomplice must be viewed with Jones v. State, 368 So.2d 1265, 1267 (Miss.1979) (); See also Derden v. State, 522 So.2d 752, 754 (Miss.1988); Winters v. State, 449 So.2d 766, 771 (Miss.1984); Parker v. State, 378 So.2d 662, 663 (Miss.1980). If the uncorroborated accomplice testimony does not suffer from these infirmities, such testimony may be found to adequately support a conviction. See, e.g., Oates v. State, 421 So.2d 1025, 1031 (Miss.1982); Catchings v. State, 394 So.2d 869, 870 (Miss.1981); Jones v. State, 381 So.2d 983, 988 (Miss.1980). The trial court, in its discretion, may grant a cautionary jury instruction concerning accomplice testimony. This discretion is not absolute however, and may be abused if no cautionary instruction was given, and (1) the witness was, in fact, an accomplice, and, (2) the testimony was not corroborated. Derden, 522 So.2d at 754.
Terrilyn Smith in the case sub judice, had been indicted on a separate indictment from Johns for the same crime. She had been tried and convicted prior to testifying at his trial. In essence, she was an accomplice to Johns. Her testimony was corroborated in part and uncorroborated as to other aspects. The agent substantiated her story concerning the transactions which took place inside the apartment. The second agent testified as to her movements the several times when she left the apartment. No one corroborated her testimony that she got the cocaine from Johns; however, both agents identified Johns as being the man driving the pickup truck, and the surveillance agent confirmed that the truck was at Johns' house just after Smith transferred the cocaine to the agent inside her house. This testimony tends to corroborate most of the testimony given by the accomplice.
However, her testimony was also substantially impeached on cross-examination when she admitted she told her attorney when she was arrested, that she had purchased the cocaine from a third person, since deceased, whose house was only two houses from that of the defendant.
The trial court granted the following instruction concerning accomplice testimony:
The Court instructs the jury that Terrilyn Smith is an accomplice in this case and the testimony of an accomplice is to be considered and weighed with great care and caution. You may give it such weight and credit as you deem it is entitled.
The jury is charged with the responsibility to weigh and consider the conflicting evidence and testimony adduced from witnesses. Winters v. State, 449 So.2d 766, 771 (Miss.1984). This Court is not at liberty to set aside a jury verdict of guilty in a criminal trial and direct the defendant be discharged, "short of a conclusion on [this Court's] part that under the evidence, taken in the light most favorable to the verdict, no reasonable hypothetical juror could find beyond a reasonable doubt that the defendant was guilty." Winters, 449 So.2d at 771. Such cannot be said in the case before this Court.
During the direct examination of Terrilyn Smith, the State elicited the fact that she had been previously convicted of a felony for the sale of a controlled substance, cocaine. On re-direct, she testified that she had not "cut any deal" with the state for her testimony at her trial; that she had gotten a ten year sentence; and that the only "deal" was that if she did not appeal her conviction, the state would not prosecute the second case against her. Also, during the direct testimony of the agent, while he was testifying concerning the chain of custody for the cocaine, he was asked by the State:
Q. And, of course, Terrilyn Smith hadn't been charged with that; has she?
A. With what?
Q. With this charge that this defendant's being tried on today?
A. Yes, sir, she's already been tried and convicted on that charge.
Q. On this charge?
A. Yes, sir.
Q. The 22nd?
[Emphasis supplied].
The appellant alleges this prejudiced the jury, and also complains that the state bolstered her testimony through the testimony of the agent. Trial counsel for the defense did not object at any time during any of this examination.
It has been the long standing rule that a contemporaneous objection is necessary in order to preserve an error for appeal. Mackbee v. State, 575 So.2d 16, 30 (Miss.1990); Handley v. State, 574 So.2d 671, 682 (Miss.1990); Singleton v. State, 518 So.2d 653, 655 (Miss.1988) (). But cf. Griffin v. State, 557 So.2d 542, 551-54 (Miss.1990) () 2 No such objection was made in the case at hand; therefore, absent the denial of a fundamentally fair trial, any error is waived.
The law is well settled that,
where two or more persons are jointly indicted for the same offense but are separately tried, a judgment of conviction against one of them is not competent evidence on the trial of the other because such plea of guilty or conviction is no evidence of the guilt of the party being tried. State v. Thornhill, 251 Miss. 718, 171 So.2d 308 (1965); Pieper v. State, 242 Miss. 49, 134 So.2d 157 (1961); Pickens v. State, 129 Miss. 191, 91 So. 906 (1922).
Buckley v. State, 223 So.2d 524, 528 (Miss.1969). Relying upon this rule in Henderson v. State, 403 So.2d 139, 141 (Miss.1981) this Court reasoned:
In Griffin v. State, 293 So.2d 810 (Miss.1974), this Court said:
The only other error assigned ... is that the state was allowed to bring out on cross-examination of James Griffin, a co-indictee, that he had been tried and convicted the preceding week and found guilty of the same murder. While this evidence was brought out by the state under the guise of showing the previous conviction of James Griffin, it was done in such a manner that the jury could not help knowing that James Griffin had been tried for the same offense the preceding week and found guilty. It was proper for the state to show that the witness James Griffin had been convicted of murder even though this conviction was on...
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