Lee v. State, 97-KA-01513 COA.
| Decision Date | 26 January 1999 |
| Docket Number | No. 97-KA-01513 COA.,97-KA-01513 COA. |
| Citation | 733 So.2d 336 |
| Parties | Brian LEE a/k/a Brian Neill Lee a/k/a `Neill Lee' a/k/a `Moonshadow', Appellant, v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
S. Christopher Farris, Hattiesburg, Attorney for Appellant.
Office of the Attorney General by Billy L. Gore, Attorneys for Appellee.
BEFORE McMILLIN, P.J., DIAZ, AND KING, JJ.
DIAZ, J., for the Court:
¶ 1. Brian Lee appeals the decision of the Forrest County Circuit Court convicting him of conspiracy to sell lysergic acid diethylamide (LSD). Lee raises the following issues in his appeal: (1) the weight and sufficiency of the evidence; (2) the admissibility of external offense evidence involving his prior sales of LSD; (3) a ruling allowing a State witness to testify concerning a transfer of drugs for which she was not present; (4) an alleged gap in the chain of custody of an audiotape recorded over a wiretap; (5) an amendment of the indictment improperly deleted two of the co-conspirators; (6) the granting of jury instructions S-1A, S-2A, and S-6; (7) the granting of jury instruction S-3, and (8) the denial of the circumstantial evidence instructions. Finding no error, we affirm the ruling of the circuit court.
FACTS
¶ 2. In April of 1996, Karlton and Sarah Bradley met the defendant, Brian Lee, who is also known as "Moonshadow" or "Shadow." During April and May of 1996, Karlton Bradley bought LSD from Brian Lee on approximately six occasions. Thereafter, Karlton would trade the LSD with David Watkins for cocaine.
¶ 3. On May 28, 1996, Karlton Bradley purchased LSD from Lee. Watkins then arrived at the Bradleys' apartment to trade the LSD purchased from Lee for two ounces of cocaine. Karlton counted the LSD when Watkins arrived and after Lee left. Karlton discovered that the LSD that he purchased from Lee was missing a page, so he called Lee to complain. Lee challenged the truthfulness of Karlton's claim that the LSD had a shortage. Watkins left the Bradleys' apartment for approximately 30 minutes while Karlton attempted to correct the alleged shortage. Lee went to the Bradleys' apartment to see whether a shortage of LSD existed. Watkins later returned to the Bradleys' apartment, and Karlton told Watkins that the LSD was short and that he would have to take a loss. According to Watkins's testimony, Lee and he have never met, spoken, or been together when drugs were exchanged with Karlton.
¶ 5. Following a trial by a jury conducted on November 3-4, 1997, Lee was found guilty of the crime of conspiracy. He was subsequently sentenced on November 10, 1997, to serve twenty years in the custody of the Mississippi Department of Corrections with five years suspended and fifteen years to serve. Feeling aggrieved, Lee now perfects this appeal.
DISCUSSION
¶ 6. A challenge to the sufficiency of the evidence requires an analysis of the evidence by the trial judge to determine whether a hypothetical juror could find, beyond a reasonable doubt, that the defendant is guilty. May v. State, 460 So.2d 778, 781 (Miss.1984). If the judge determines that no reasonable juror could find the defendant guilty, then he must grant the motion for a directed verdict and JNOV. Id. If he concludes that a reasonable juror could find the defendant guilty beyond a reasonable doubt, then he must deny the motion. Id. This Court's scope of review is limited to the same examination as that of the trial court in reviewing the motions for directed verdict and JNOV; that is, if the facts point in favor of the defendant to the extent that reasonable jurors could not have found the defendant guilty beyond a reasonable doubt, viewing all facts in the light most favorable to the State, then it must sustain the assignment of error. Blanks v. State, 542 So.2d 222, 225-26 (Miss.1989). Of course, the opposite is also true. We may reverse the trial court's ruling only where one or more of the elements of the offense charged is lacking to such a degree that reasonable jurors could only have found the defendant not guilty. McClain v. State, 625 So.2d 774, 778 (Miss.1993).
¶ 7. In the case sub judice, legally sufficient evidence existed to find Lee guilty beyond a reasonable doubt for conspiracy to sell LSD. The State made out is prima facie case by showing that Lee knowingly traded LSD to Karlton Bradley who in turn traded it to Watkins in exchange for cocaine for distribution. Furthermore, the police officers and Bureau of Narcotics officers testified that they saw and heard Lee's participation in the conspiracy by virtue of their surveillance equipment. Additionally, Sarah Bradley testified that Lee and Karlton exchanged LSD for cocaine, and then the LSD was sold to Watkins and distributed in Louisiana. Finally, the State submitted as evidence video and audio tapes of Lee's participation in the conspiracy. Since the State put forth sufficient, credible evidence, the trial judge was required to leave the final decision of guilt or innocence to the jury. We affirm the trial judge's ruling with regard to the motion for a directed verdict.
¶ 8. The next motion we will review is that for a new trial. This goes to the weight of the evidence and not its sufficiency. In reviewing this claim, this Court must examine the trial judge's denial of Lee's motion for a new trial. Jones v. State, 635 So.2d 884, 887 (Miss.1994). The decision of whether or not to grant a motion for a new trial rests in the sound discretion of the trial judge and should only be granted when the judge is certain that the verdict is so contrary to the overwhelming weight of the evidence that failure to grant the motion would result in an unconscionable injustice. May, 460 So.2d at 781. In making the determination of whether a verdict is against the overwhelming weight of the evidence, this Court must view all evidence in the light most consistent with the jury verdict, and we should not overturn the verdict unless we find that the lower court abused its discretion when it denied the motion. Veal v. State, 585 So.2d 693, 695 (Miss. 1991). The proper function of the jury is to decide the outcome in this type of case, and the court should not substitute its own view of the evidence for that of the jury's. Id. Likewise, the reviewing court may not reverse unless it finds there was an abuse of discretion by the lower court in denying the defendant's motion for a new trial. Id. Upon reviewing all of the evidence presented in the light most consistent with the verdict, we find that the trial judge did not abuse his discretion in denying Lee's motion for a new trial. Accordingly, we dismiss this assignment of error as lacking in merit.
¶ 9. The determination of whether evidence is relevant and or admissible is within the discretion of the trial court and reversal may be had only where that discretion has been abused. Johnston v. State, 567 So.2d 237, 238 (Miss.1990). Trial judges must exercise their discretion within the boundaries of the Mississippi Rules of Evidence. Id. During the trial, the State offered evidence of Lee's prior bad acts claiming that the LSD sales were admissible to prove motive, plan, and knowledge under Mississippi Rule of Evidence 404(b). The admissibility of evidence related to prior bad acts is well established in Mississippi. Mississippi Rule of Evidence 404 provides that evidence of a person's character or a trait of his character is generally not admissible. The rule does, however, designate certain exceptions such as evidence of other crimes, wrongs or acts that are admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence mistake or accident.
¶ 10. The testimony assigned as error here was not introduced to prove the character of Lee, but to show the frequency with which Lee sold LSD to Watkins for later distribution in New Orleans. This was evidence of a continuing pattern of behavior which resulted in at least six sales of LSD, going towards Lee's motive, plan, and knowledge.
¶ 11. Lee further argues that even if the evidence was admissible under 404(b), the second part for the test for admission of prior bad acts was not met. Evidence admissible under M.R.E. 404 must also pass muster under Rules 401-403. United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978). The Mississippi Supreme Court also addressed the particular aspect of the relevancy rules M.R.E. 401-403 by stating: "These rules carry forward our traditional view that in a conspiracy prosecution, the range of relevant evidence is quite wide." Ford v. State, 546 So.2d 686, 689 (Miss. 1989) (citations...
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