Johnson v. State, NO. 2017-KA-01483-COA

• Court: Court of Appeals of Mississippi
• Writing for the Court: LAWRENCE, J., FOR THE COURT
• Citation: 311 So.3d 1161
• Parties: Daryl Fitzgerald JOHNSON a/k/a Daryl F. Johnson a/k/a Daryl Johnson Appellant v. STATE of Mississippi Appellee
• Decision Date: 24 March 2020
• Docket Number: NO. 2017-KA-01483-COA

311 So.3d 1161

Daryl Fitzgerald JOHNSON a/k/a Daryl F. Johnson a/k/a Daryl Johnson Appellant
v.
STATE of Mississippi Appellee

NO. 2017-KA-01483-COA

Court of Appeals of Mississippi.

March 24, 2020
Rehearing Denied July 21, 2020

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS

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

DISTRICT ATTORNEY: JOEL SMITH

BEFORE J. WILSON, P.J., LAWRENCE AND C. WILSON, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. Daryl Johnson was convicted by a Harrison County Circuit Court jury on March 8, 2016, of two counts of transferring cocaine. Following the jury trial, he was sentenced to serve two sixteen-year terms consecutively for a total of thirty-two years in the custody of the Mississippi Department of Corrections (MDOC), without eligibility for parole or probation. Daryl now appeals and claims the trial court committed numerous errors. After review, we affirm Daryl's convictions and sentences.

FACTS

¶2. Between March 13, 2014, and April 11, 2014, Tiffany Young went to the Johnson & Johnson Motel (the Johnson & Johnson) in Gulfport, Mississippi, on four separate occasions to purchase cocaine. Young worked for the Gulfport Police Department as a confidential informant in an effort to discover violations of controlled substances laws. On the first two occasions (March 13, 2014, and April 1, 2014) Young purchased cocaine from Tyrice Johnson, Daryl Johnson's nephew.¹ The second two occasions (April 10, 2014 and April 11, 2014) she alleged that she purchased cocaine from Daryl.

¶3. After the April 10 and April 11 transactions, Young immediately met with Gulfport police to turn over the cocaine she purchased. She identified Daryl in a photo lineup as the man she purchased the cocaine from. As a result of the April 10 and April 11 transactions, Daryl was indicted on August 7, 2014, for two counts of the sale of less than two grams of cocaine. Furthermore, the indictment charged Daryl as a second or subsequent drug offender in accordance with

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Mississippi Code Annotated section 41-29-147 (Rev. 2013) and as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007).

¶4. The State's primary evidence against Daryl was the testimony of Young and the surveillance of the April 11, 2014 transfer.² The April 11 video showed the inside of Young's driver's side door with the window rolled down. In the video, Young was talking to an African American man who was wearing a hat, glasses, and a t-shirt. The video does not show if the man had any distinguishing characteristics like gold teeth, scars, or tattoos.³ Only the left side of the man's neck and the outside of his left arm are visible in the video. Notably, the transfer of the cocaine is not on the video. The State heavily relied on the video, Young's testimony describing what occurred, and her identification of Daryl. Daryl claimed at trial that he was not the person in the video. Instead, he claimed that it was his brother, Terry. Terry admitted at trial that he was the person on the video, but he denied that he ever sold drugs to Young.

¶5. On March 1, 2016,⁴ the defense sent its witness list to the State. The list included twelve separate witnesses, all of whom were expected to testify that the man in the video was Terry, not Daryl.⁵ On March 7, 2016, the State filed a motion in limine to limit the number of witnesses the defense would call. At the hearing on March 8, 2016, the defense offered to reduce the number of witnesses it would call at trial:

MR. HESTER: ... I can accept Your Honor's opinion that - - what I believe will be Your Honor's opinion that eleven is excessive, not counting the defendant. And actually, we lost [a witness] to a heart attack Saturday. So I guess we're down to ten. I'd ask that you let me have at least five.

The trial court then granted the State's motion and limited the defense to three witnesses. Following the trial court's ruling, the defense asked if the court would consider an eyewitness, who was actually present at the time of the transactions, as an additional witness. The trial court initially denied the defense's request, but later in the same hearing, the court clarified that an eyewitness would not be considered in the three-witness limit. This meant that the defense was able to call three lay witnesses who would offer the same opinion that the man in the video was not Daryl. Notably, the defense never made a proffer at the hearing, nor at trial, as to exactly what the other witnesses would have testified to had they been called at trial.

¶6. In addition to the motion to limit the number of witnesses the defense could call, the State filed another motion in limine to use Daryl's prior 1993 drug conviction to "establish that he had motive, opportunity, knowledge, and intent to sell the cocaine

311 So.3d 1168

that was transferred" in April 2014. Additionally, the State sought to introduce evidence that when Young purchased cocaine from Tyrice on April 1, 2014, Tyrice went to Daryl to discuss the sale. The State argued that Young could identify Daryl based on that observation. The defense objected to the motion during the pre-trial hearing on March 8. The trial court, after conducting a balancing test under Rule 403 of the Mississippi Rules of Evidence to determine if the probative value was outweighed by the prejudicial effect of the evidence, granted the State's motion. After the trial began, the State attempted to clarify the court's ruling. The defense objected. In response, the trial court held as follows:

Well, yesterday we had a hearing. I specifically ordered that possession with intent would be allowed in because it goes to intent, but all the other charges, simple assault and the aggravated assault and I believe there was even possession, none of that will be allowed in.

(Emphasis added). The defense again objected and argued that the 1993 possession of controlled substance with the intent to distribute was highly prejudicial. The trial court overruled the objection.

¶7. Young testified at length during the trial. She told the jury that the first time she went to the Johnson & Johnson she met Tyrice, who sold her cocaine. It was during that first interaction with Tyrice that Young met Daryl. She told the jury "Ty[rice] introduced us, and he said that this was his uncle, and when I come back I could deal with his uncle." Young testified that Tyrice identified his uncle as "Roughhouse." Tyrice also told Young that his uncle had a "white cap with gold teeth" and owned the Johnson & Johnson.⁶

¶8. Young testified that on April 10, 2014, before going to the Johnson & Johnson, she met with officers from the Gulfport Police Department. She testified that the police searched her car and person to ensure she had no drugs on her, gave her a recording device, and handed her one hundred dollars to buy cocaine from Daryl. When she arrived at the Johnson & Johnson, Young testified that she saw "D.J." there.⁷ She spoke with "D.J." and purchased cocaine from him. She then returned to the Gulfport police officers and identified "D.J." as Daryl from a photo lineup.

¶9. The next day, April 11, 2014, Young met with Gulfport police again. The police searched her car, gave her a recording device, and handed her one hundred dollars to buy cocaine. She then testified she went back to the Johnson & Johnson. Young's testimony was as follows:

Q. And who did you meet up with?

A. D.J.

Q. Did you meet him inside again, or did you meet him outside somewhere?

A. Outside.

Q. And where did you meet him outside?

A. Out back.

Q. Is there a back alley or a back parking lot?

A. It's like a back parking lot.

Q. Okay. Now, who did you see when you pulled up?

311 So.3d 1169

A. There were random people on the side. He came out of the apartment complex, I believe.

Q. You said "he." Who came out?

A. D.J.

Q. D.J. And he came to your vehicle?

A. Yes.

Q. What happened when he came up to the car?

A. We talked for a few minutes. I gave him the money. He gave me the drugs. And I told him I'll see him later, I'll call him later, and I left.

Young's testimony matches the video of the April 11 transaction, which was entered into evidence at trial.

¶10. Young told the jury that after she purchased cocaine from "D.J." a second time, she went back to the Gulfport police officers, gave them the cocaine, and picked Daryl out of a photo lineup. At trial, Young again identified Daryl as the man in the video that she purchased cocaine from on April 11, 2014. The State asked Young if she knew Daryl's brother, Terry Johnson, and if she had ever purchased cocaine from Terry. Young responded she had "briefly" seen Terry at the Johnson & Johnson, but it was Daryl and not Terry from whom she purchased cocaine. On cross-examination, the defense extensively questioned Young about her identification. She maintained that it was Daryl in the video and Daryl who sold her cocaine on April 10, 2014, and April 11, 2014.

¶11. Detective Joey Wuest testified that he worked with Young during the April 10 and April 11 transactions. During his cross-examination, Detective Wuest was asked if he knew...