Jones v. State, 97-KA-01343-SCT.

• Decision Date: 12 August 1999
• Docket Number: No. 97-KA-01343-SCT.,97-KA-01343-SCT.
• Citation: 740 So.2d 904
• Parties: Mathew JONES v. STATE of Mississippi.
• Court: Mississippi Supreme Court

740 So.2d 904

Mathew JONES v. STATE of Mississippi.

No. 97-KA-01343-SCT.

Supreme Court of Mississippi.

August 12, 1999.

Charles E. Miller, McComb, Attorney for Appellant.

Office of the Attorney General by Scott Stuart, Attorney for Appellee.

BEFORE PRATHER, C.J., BANKS AND SMITH, JJ.

PRATHER, Chief Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Mathew Jones was tried and convicted in the Lincoln County Circuit Court for Count I, delivery of cocaine and, Count II, possession of cocaine. He was subsequently sentenced as an habitual criminal to sixty years in prison on Count I and six years in prison on Count II. Jones appeals, and raises the following issues for consideration by this Court:

A. Whether the evidence is insufficient to support the conviction pursuant to the indictment and relevant law, such that the lower court erred in not granting a directed verdict pursuant to the Mississippi Rules of Procedure?

B. Whether the trial court committed reversible error by permitting the prosecutor to elicit testimony of a separate and distinct crime, depriving Mathew Jones of due process under the federal and state Constitutions and denying Jones a fundamentally fair trial?

C. Whether the confidential informant, Andrea Jones, was a reliable witness and that in violation of appellant's basic rights said informant's testimony was admitted?

D. Whether the lower court judge erred in its failure to recuse and remove itself from this case based on bias?

E. Whether the lower court judge erred in admitting evidence from an illegal search warrant and wrongfully admitted the audiotape and illegal substance into evidence?

F. Whether the lower court acted improperly by sentencing appellant to a mandatory sixty-six years in the custody of the Mississippi Department of Corrections?

¶ 2. This Court finds that the issues raised by Jones are without merit. Accordingly, the judgment of the trial court is affirmed.

STATEMENT OF THE FACTS

¶ 3. The informant in this case, Andrea Jones (hereinafter "the informant"), testified that he and Mathew Jones (hereinafter "Jones") cut and wrapped crack cocaine at Jones' home on June 8, 1997. Jones gave the informant a large quantity of cocaine, with instructions to sell it. The informant, against whom other charges were pending¹, contacted his attorney. The attorney contacted the authorities. As a result, at 10:00 p.m., on June 10, 1997, the informant met with Officers Crieg Oster (a veteran Unit Commander for the Southwest Narcotics Enforcement Unit and member of the Brookhaven Police Department) and Gary Vanderslice (a member of the Lincoln County Sheriffs Department and the Southwest Narcotics Enforcement Unit).

¶ 4. At that meeting, the informant gave Oster and Vanderslice approximately 14.39 grams of crack cocaine, comprised of forty-five rocks that had been individually sealed. The informant stated that he had received the cocaine from Jones.

¶ 5. The informant testified that he had not disturbed the contents of the package, from the time he received it from Jones, until he gave it to the authorities. He had, however, removed the package from a foil wrapper and placed it in a plastic bag, because the foil was tearing.

¶ 6. The informant was searched, equipped with a body transmitter and cassette recorder, and given $900 in official funds. At approximately 11:05 p.m., the informant left the officers' presence on foot, while the officers maintained audio surveillance. The informant was to give Mathew Jones $900 for the package of cocaine.

¶ 7. At approximately 11:11 p.m., the informant arrived at Jones' home. Officers Vanderslice and Oster then heard the informant talking with Jones for approximately twenty-eight minutes; the officers recognized both voices. The officers also heard the voices of an unidentified male and female. The informant testified that these voices belonged to Robert "Little Robert" Allen, Jr., and Annette Richardson Jones.²

¶ 8. Jones asked "You sold it all?"— referring to the rocks of cocaine. The informant asked, "So you don't know when you're going to have no more?"—to find out when Jones would have more cocaine. Jones indicated that "it was too dark to go get it from back in his yard." Jones also stated that, when he bought from someone else, he lost money. Jones further stated that he once received a $100 bill (presumably for crack cocaine), and that he immediately changed it, in case it was "marked". In addition, Jones indicated that he would have given the informant $200, if the informant had brought $1,000 for the total package.

¶ 9. Agent Vanderslice listened contemporaneously to the entire conversation between the informant and Jones; Agent Oster heard most of the conversation, but was also engaged in conversation with Captain Bobby Bell, a veteran of the Brookhaven Police Department³. Captain Bell testified that he heard portions of the conversation between the informant and Jones, which indicated that cocaine could be found in Jones' home.⁴

¶ 10. The informant returned to the officers. Several officers went to Jones' residence, where they arrived at 11:39 that evening. The occupants of the residence (including Jones and his wife) were detained, while a search warrant was obtained.

¶ 11. The search warrant was executed at approximately 1:30 a.m., June 11, 1997. The officers discovered $800 of the official funds, which had been given to the informant earlier that evening. The agents also seized: one napkin with plastic wrap that contained cocaine residue (which was found in a flower pot in Jones' bedroom); one rifle; one Uniden Bearcat Scanner; one shotgun; three boxes of sandwich bags; four butane lighters; and, two boxes of razor blades.⁵ Jones was then arrested. ¶ 12. After the house was secure, Vanderslice met the informant and retrieved the body transmitter and recorder from the informant. The informant testified that he had not touched the tape. In addition, the informant gave Agent Vanderslice $100 of the official funds, which had been issued previously that evening. The tape-recorded conversation between the informant and Jones indicated that the $100 was payment from Jones for selling the drugs.

¶ 13. The informant denied that he borrowed money from or owed money to Jones. However, three of Jones' friends (two of whom admitted to having previously used illegal drugs) testified that, in late May or early June, 1997, they saw Jones give the informant money at the informant's request.

¶ 13. At least three witnesses testified that the informant was not a truthful person. For example, Officer Arlustra Henderson, the Brookhaven Chief of Police, testified that the informant was not truthful in an interview on a previous case.

¶ 14. The informant hoped that, by cooperating with the authorities, he would receive a reduced sentence on a pending drug charge. However, the officers did not mention or promise a reduced sentence, and "[n]o deal was made." The informant also knew that he had to give the police someone else's name, in order to stay out of prison.

LEGAL ANALYSIS

A. Whether the evidence is insufficient to support the conviction pursuant to the indictment and relevant law, such that the lower court erred in not granting a directed verdict pursuant to the Mississippi Rules of Procedure?

¶ 15. Jones first argues that he should have been granted a directed verdict.

Requests for a directed verdict and motions JNOV implicate the sufficiency of the evidence. The standard of review for the legal sufficiency of the evidence is well-settled:

[W]e must, with respect to each element of the offense, consider all of the evidence—not just the evidence which supports the case for the prosecution—in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Gleeton v. State, 716 So.2d 1083, 1087 (Miss.1998) (citations omitted).

¶ 16. Jones argues that this case is based solely on the testimony of the confidential informant and circumstantial evidence. Given the eye-witness testimony and the audiotape, Jones' argument that this is a circumstantial evidence case is clearly specious. It is true, however, that the primary evidence on the delivery charge in this case came from the informant.⁶ It is also true that the informant's credibility was attacked.

¶ 17. Jones argues that the informant's testimony amounted to uncorroborated statements of an accomplice.

This Court has long held that the testimony of an accomplice must be viewed with "great caution and suspicion. Where it is uncorroborated, it must also be reasonable, not improbable, self-contradictory or substantially impeached." Jones v. State, 368 So.2d 1265, 1267 (Miss.1979) (and numerous cases cited therein); 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

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