Russell v. State

• Decision Date: 26 May 2020
• Docket Number: NO. 2019-KA-00491-COA,2019-KA-00491-COA
• Citation: 296 So.3d 217
• Parties: James RUSSELL a/k/a James Everett Russell, Jr. a/k/a James J. Russell a/k/a J.J. Russell, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

296 So.3d 217

James RUSSELL a/k/a James Everett Russell, Jr. a/k/a James J. Russell a/k/a J.J. Russell, Appellant

v.STATE of Mississippi, Appellee

NO. 2019-KA-00491-COA

Court of Appeals of Mississippi.

May 26, 2020

ATTORNEY FOR APPELLANT: THOMAS W. POWELL

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, Jackson

BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.

GREENLEE, J., FOR THE COURT:

¶1. In August 2018, James Russell was indicted for trafficking 30 grams or more of methamphetamine in violation of Mississippi Code Annotated section 41-29-139(f)(2)(C) (Supp. 2016). He was also charged as a second drug offender under Mississippi Code Annotated section 41-29-147 (Rev. 2013) and a nonviolent habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). After a jury trial, Russell was found guilty as charged. The trial court sentenced Russell, as a nonviolent habitual offender and second drug offender, to serve forty years in the custody of the Mississippi Department of Corrections without eligibility for parole. Russell was also ordered to pay all court costs.

¶2. After the denial of his motion for a new trial, Russell appealed. On appeal, Russell claims (1) the trial court erred by denying his motion for a directed verdict, (2) the jury's verdict was against the overwhelming weight of the evidence, (3) the trial court erred by admitting hearsay evidence, (4) the trial court erred by admitting videos of the controlled purchase, and (5) his counsel was ineffective for failing to request a two-theory jury instruction. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶3. At Russell's trial, the State presented evidence that on December 7, 2017, a confidential informant purchased 37.66 grams of methamphetamine from Russell at his residence on Clifton Hillsboro Road in Scott County, Mississippi.

¶4. Brad Ellis, the captain of the narcotics division of the Scott County Sheriff's Office, testified that Margaret Carrillo agreed to be a confidential informant in an attempt to "work off" a misdemeanor charge from another county. Carrillo knew Russell and had been to his residence before. So she called Russell and arranged a purchase of methamphetamine. Over defense counsel's objection, Captain Ellis testified that he overheard Carrillo tell Russell that she wanted to purchase approximately 1.5 ounces of methamphetamine.¹

¶5. Captain Ellis testified that he and Agent Clay McCombs, with the Mississippi Bureau of Narcotics, met with Carrillo before the controlled purchase on December 7, 2017. They searched Carrillo and her vehicle and equipped her with two cameras. Then, from a nearby location, they watched Carrillo drive to and enter Russell's residence, which was located on Clifton Hillsboro Road in Scott County, Mississippi. Captain Ellis testified that Carrillo was inside the residence for approximately thirty minutes. Although they were not able to see inside the residence, they were able to listen to live audio. Captain Ellis testified that after the controlled purchase, Carrillo followed them to a nearby location. Captain Ellis testified that they took possession of two baggies, retrieved the cameras, and obtained a statement from Carrillo. Jacqueline Gledhill, with the Mississippi Forensics Laboratory, later determined that the substance in the two baggies was 37.66 grams of methamphetamine.²

¶6. Agent McCombs's testimony was similar. He testified that prior to the controlled purchase, he searched Carrillo's vehicle extensively. However, because a female agent was not available, he searched Carrillo's person "as good as possible without being intrusive ...." Agent McCombs testified that while listening to the live audio, he heard what he believed to be a conversation about a drug transaction. And when he reviewed the videos, he identified Russell as the person who sold the methamphetamine to Carrillo. Agent McCombs testified that the cameras did not capture a "hand-to-hand" transaction. But he explained that people have found "crafty ways" to avoid such transactions. Finally, Agent McCombs testified that he gave Carrillo $950 dollars in official State funds to purchase the methamphetamine. But when he reviewed the videos, he realized Carrillo only paid $750. Agent McCombs testified that he confronted Carrillo about the missing $200, and she ultimately returned it.

¶7. Carrillo also testified at Russell's trial. Carrillo testified that prior to the controlled purchase, Captain Ellis and Agent McCombs searched her and her vehicle and that they equipped her with two cameras—one on her shirt and one on a cell phone. Carrillo testified that when she arrived at Russell's house, they talked for a while, he went outside, and then he went into the kitchen. According to Carrillo, she did not see any drugs when she arrived at Russell's residence, but she did see drugs after Russell returned from being outside. Carrillo testified that Russell prepared two baggies of methamphetamine and gave them to her. She explained that he placed the baggies on the table, she put the money on the table, and then Russell picked up the money. Carrillo testified she and Russell talked for a little while longer, and then she left and turned the evidence over to the officers.

¶8. During Carrillo's testimony, the State moved to admit into evidence the videos that were recorded during the controlled purchase. At that time, defense counsel objected to the admission of the videos, arguing that they were more prejudicial than probative.³ Ultimately, the court found that the videos would assist the jury and overruled the objection.

¶9. As portions of the video were played for the jury, Carrillo testified that the video showed Russell inside the residence. She also testified that Russell went outside and then into the kitchen. Carrillo testified that when Russell returned to the area where she was sitting, he picked up the money and said, "Fourteen and twenty-eight."⁴ Then he gave her two baggies. On cross-examination, defense counsel asked Carrillo if the videos showed the transaction, and Carrillo ultimately replied, "I guess not." Carrillo also acknowledged that Brittany Freeny, the mother of Russell's child, could be seen in parts of the videos.

¶10. On cross-examination, Carrillo admitted that she had purchased drugs from Freeny before. But when asked if Freeny was the person who gave the methamphetamine to her, she responded, "No." And on redirect, Carrillo testified that she was positive that Russell sold the methamphetamine to her. Finally, Carrillo admitted to keeping $200 of the official State funds, but she testified that she returned the money the next day.

¶11. After the State rested its case-in-chief, the defense called Freeny as a witness. According to Freeny, she and Russell were living together on December 7, 2017, and she had previously sold drugs to Carrillo. Freeny initially testified that she did not sell anything to Carrillo on December 7, 2017, but then she testified that she could not remember if she gave the drugs to Carrillo. And then she testified that she might have handed the drugs to Carrillo.

¶12. On cross-examination, Freeny admitted that Russell sometimes hid methamphetamine outside. But she testified that she could not remember if he did so on December 7, 2017. According to Freeny, she could not remember that day at all.

¶13. Finally, Russell testified. Russell did not deny being in the videos. But according to Russell, Freeny gave the methamphetamine to Carrillo on December 7, 2017. Russell testified that he "didn't give [Carrillo] ... no drugs, no nothing." Although Captain Ellis and Carrillo testified that Carrillo called Russell to arrange the purchase of the methamphetamine, Russell denied that the conversation occurred. And contrary to Freeny's testimony, Russell testified that he never hid methamphetamine outside. Russell then testified that he sold marijuana, and the money that he picked up and put in his pocket was for marijuana. According to Russell, this was a big misunderstanding. At some point, Russell collected rent at an apartment complex where Carrillo lived. Russell testified that he and Carrillo had previously "got into it" because "we had to kick her out because she wasn't paying rent at first." Russell concluded, "I guess that's why I ended up here[.]"⁵

¶14. After considering the evidence presented at trial, the jury found Russell guilty as charged. On appeal, Russell claims that the trial court erred by denying his motion for a directed verdict, the jury's verdict was against the overwhelming weight of the evidence, the trial court erred by admitting hearsay evidence, the trial court erred by admitting videos of the controlled purchase, and his counsel was ineffective for failing to request a two-theory jury instruction.

DISCUSSION

I. Sufficiency of the Evidence

¶15. Russell claims the trial court erred by denying his motion for a directed verdict because the State failed to prove beyond a reasonable doubt that he was the individual who sold methamphetamine to Carrillo on December 7, 2017.

¶16. "A criminal defendant has several procedural vehicles available to him for challenging the sufficiency of the evidence." Myles v. State , 774 So. 2d 486, 490 (¶15) (Miss. Ct. App. 2000). A challenge to the sufficiency of the evidence "can be raised in a motion for directed verdict made at the end of the case for the prosecution, a request for a peremptory instruction at the end of all of the evidence or the motion for a directed verdict at that point, or finally, a motion for judgment of acquittal notwithstanding the verdict." Id . at 491 (¶15). "When the sufficiency of the evidence is challenged on appeal, we review the circuit court's ruling on the last occasion when the sufficiency of the evidence was challenged before the trial court." Id . In this case, Russell requested, at the close of all the evidence, a peremptory instruction, which the trial court denie...