Johnson v. State, 91-KA-00798

• Decision Date: 08 September 1994
• Docket Number: No. 91-KA-00798,91-KA-00798
• Citation: 642 So.2d 924
• Parties: Johnny JOHNSON a/k/a Smokey v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 924

642 So.2d 924

Johnny JOHNSON a/k/a Smokey v. STATE of Mississippi.

No. 91-KA-00798.

Supreme Court of Mississippi.

Sept. 8, 1994.

Whitman D. Mounger, Greenwood, for appellant.

Michael C. Moore, Atty. Gen., Jackson, Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, MS, for appellee.

Before PRATHER, P.J., and BANKS and SMITH, JJ.

PRATHER, Presiding Justice.

I. INTRODUCTION

Johnny Johnson, a/k/a Smokey, and Jimmy Spruill, a/k/a Little Jimmy, were indicted by the grand jury of Leflore County in its November 1990 term and charged with the sale of cocaine and conspiracy to sell cocaine. Following a trial on the merits, Johnson was convicted on both counts. Johnson's subsequent motion for new trial or judgment notwithstanding the verdict (JNOV) was denied. Johnson now appeals to this Court, seeking review of the following issues:

A. Whether the trial court erred in refusing to grant a directed verdict, by way of a requested peremptory instruction (D-1), with regard to the charge of sale of cocaine, and likewise erred in overruling Johnson's motion for new trial or JNOV with regard to said charge;

B. Whether the trial court erred in refusing to grant a directed verdict, by way of a requested peremptory instruction (D-2), with regard to the charge of conspiracy to sell cocaine, and likewise erred in overruling Johnson's motion for new trial or JNOV with regard to said charge; and

C. Whether the trial court erred in refusing to grant defendant's requested jury instructions D-4, D-26, and D-28.

A thorough review of the facts and the law has convinced this Court that Johnson's conviction of the sale of cocaine must be affirmed, while his conviction of conspiracy must be reversed.

II. THE FACTS RELEVANT TO REVIEW

On March 23, 1990, Kary Ellington, an agent with the North Central Narcotics Task Force, pulled up to a fence at McLaurin Street and Avenue F in Greenwood, where he saw Johnny Johnson. Ellington asked Johnson if he knew where Ellington could find some crack cocaine. Johnson said that he did, and got into Ellington's automobile. ¹ The foursome went to a couple of other places looking for drugs, without success. Then the group travelled to Vardaman Street, at Johnson's direction, where Johnson told Ellington to back down the street. ² The four exited the car and Johnson and Ellington went to the door of 213 Vardaman Street while Taylor and Gates waited on the side of the house.

When Jimmy Spruill answered Johnson's knock, Johnson told him he wanted some crack cocaine. Spruill retrieved a Domino match box, which contained a rock of crack cocaine ³, from his pocket and gave it to Ellington, who in turn gave Spruill $50.00. When Johnson asked for "a pinch of the drugs," Ellington gave him $5.00 instead. Ellington, Taylor, and Gates then returned to the car, leaving Johnson on the street. Ellington placed the contraband in a small plastic evidence bag, went to the post-buy meeting place, and wrote his synopsis.

Jimmy Spruill, who was serving time in Parchman for the sale of cocaine at the time of Johnson's trial, claimed that although he had sold drugs in the past, he had never used Johnson as a runner. Spruill testified that Ellington, accompanied by Taylor and Gates, bought drugs from him only once, and Johnson was not present. But on cross-examination, Spruill admitted that he had sold drugs to Ellington on many occasions and that he may have sold to Ellington on March 23, 1990.

Johnson denied that he had joined with Spruill to sell drugs or to conspire to sell drugs to Ellington on March 23, 1990, although he admitted he was with Ellington on that date. Johnson's testimony corroborated Ellington's to a great extent. However, Johnson said he did not direct Ellington to Vardaman Street and claimed that once on Vardaman Street, Spruill was outside and approached the car; none of the vehicle's occupants got out. Spruill and Ellington completed the transaction without any help from Johnson, then Johnson asked for a piece of the cocaine rock.

III. THE LAW

A. Whether the trial court erred in refusing to grant a directed verdict, by way of a requested peremptory instruction (D-1), with regard to the charge of sale of cocaine, and likewise erred in overruling Johnson's motion for new trial or JNOV with regard to said charge.

B. Whether the trial court erred in refusing to grant a directed verdict, by way of a requested peremptory instruction (D-2), with regard to the charge of conspiracy to sell cocaine, and likewise erred in overruling Johnson's motion for new trial or JNOV with regard to said charge.

1. Directed Verdict, Peremptory Instruction, and JNOV

Just as did his motion for directed verdict and request for peremptory instructions, Johnson's motion for JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). See also Noe v. State, 616 So.2d 298, 301 (Miss.1993) (motion for directed verdict tests legal sufficiency of the evidence); Strong v. State, 600 So.2d 199, 201 (Miss.1992) (when faced with a request for a peremptory instruction, the trial judge is bound by the same law which guides his decision regarding a motion for directed verdict). This Court must review the evidence and the ruling on its sufficiency as of the time the last challenge was made in the trial court. McClain, 625 So.2d at 778, citing Wetz v. State, 503 So.2d 803, 807-08 (Miss.1987). In this instance, the last challenge to the sufficiency of the evidence was Johnson's motion for JNOV.

The evidence is viewed in the light most favorable to the State, which also receives the benefit of any favorable inferences which may be reasonably drawn from the evidence. McClain, 625 So.2d at 778. All credible evidence consistent with the guilty verdict is accepted as true, with issues of weight and credibility resolved by the jury. McClain, 625 So.2d at 778. This Court will reverse only where "reasonable and fair-minded jurors could only find the accused not guilty." McClain, 625 So.2d at 778, citing Wetz, 503 So.2d at 808; Harveston v. State, 493 So.2d 365, 370 (Miss.1986); Fisher v. State, 481 So.2d 203, 212 (Miss.1985).

a. Sale of Cocaine

Miss.Code Ann. Sec. 41-29-139(a)(1) (1972) makes it unlawful for any person to knowingly or intentionally "sell, barter, transfer, manufacture, distribute, dispense or possess with intent to create, sell, barter, transfer, distribute or dispense" cocaine. One who aids and abets a sale of cocaine is guilty as a principal, regardless of whether he personally profited from the sale. Turner v. State, 573 So.2d 1340, 1342 (Miss.1990), citing Miss.Code Ann. Sec. 97-1-1 (1972). See also Minor v. State, 482 So.2d 1107, 1111-12 (Miss.1986). "[S]ubstantial knowing participation in the consummation of a sale or in arranging for the sale" is sufficient to support a conviction for sale of a controlled substance pursuant to Miss.Code Ann. 41-29-139 (1972). Minor, 482 So.2d at 1112, quoting Williams v. State, 463 So.2d 1064, 1066 (Miss.1985).

Viewed in the light most favorable to the State, the evidence can be summarized as follows:

1. Johnson told Ellington he knew where Ellington could get some crack cocaine;

2. Johnson got into Ellington's car;

3. Johnson directed Ellington to Spruill's address;

4. Johnson accompanied Ellington to the door and knocked on it;

5. Johnson told Spruill that Ellington wanted to purchase some cocaine; and

6. Johnson remained with Ellington and Spruill while the sale was consummated.

This evidence is sufficient proof of "substantial knowing participation in the consummation of a sale or in arranging for the sale" of cocaine from Spruill to Ellington. This is not a case where reasonable jurors could only find Johnson not guilty. This Court therefore affirms the trial court on this issue.

b. Conspiracy

Miss.Code Ann. Sec. 97-1-1 (Supp.1993) provides that the crime of conspiracy is committed when two or more persons conspire to commit a crime or to accomplish any unlawful purpose. Each alleged conspirator must recognize that he is joining the other in a common plan and "[e]ach must intend to further a common and unlawful purpose." Taylor v. State, 536 So.2d 1326, 1328 (Miss.1988). See also Watson v. State, 521 So.2d 1290, 1293 (Miss.1988). A formal or express agreement is not required to prove a conspiracy; a conspiracy may be proven by the acts and conduct of the alleged conspirators. Thomas v. State, 591 So.2d 837, 839 (Miss.1991), citing Clayton v. State, 582 So.2d 1019, 1022 (Miss.1991); Nixon v. State, 533 So.2d 1078, 1092 (Miss.1987), cert denied, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989).

Johnson and Spruill were indicted for conspiracy to sell cocaine. An agreement to sell cocaine could possibly be inferred by the combined acts of Johnson and Spruill, yet there is no evidence that Spruill knew Johnson would bring Ellington or any other cocaine purchaser to his home. Viewing the evidence in the light most favorable to the State, Johnson knew that Spruill sold cocaine, but Ellington also possessed this knowledge; Johnson directed Ellington to Spruill's house, and accompanied Ellington to the door, knocked on the door, and told Spruill that they wanted to purchase cocaine. Spruill then supplied the cocaine to Ellington. This is insufficient evidence of the actors' recognition that they were entering into a common plan and knowingly intended to further its common purpose. Griffin v. State, 480 So.2d 1124, 1126 (Miss.1985), citing McDonald v. State, 454 So.2d 488 (Miss.1984). Reasonable jurors could only find Johnson not guilty of a conspiracy with Spruill to sell cocaine. It follows that this Court reverses on this issue.

2. New Trial

"The standard of review of a post-trial motion is abuse of discretion." Flowers v. State, 601 So.2d 828, 833 (Miss.1992), citing Robinson v. State, 566 So.2d 1240, 1242 (Miss.1990). A motion for new trial is discretionary with the trial judge and this Court will not order a...