Scott v. State, 1999-KA-01053-SCT.
| Decision Date | 26 April 2001 |
| Docket Number | No. 1999-KA-01053-SCT.,1999-KA-01053-SCT. |
| Citation | 796 So.2d 959 |
| Parties | Sara SCOTT a/k/a `TIC' v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Dwayne G. Deer, McComb, Attorney for Appellant.
Office of the Attorney General by Jean Smith Vaughan, Jackson, Attorneys for Appellee.
Before PITTMAN, C.J., MILLS and WALLER, JJ.
PITTMAN, C.J., for the Court:
¶ 1. This case arises on appeal from Sara Scott's conviction for distribution of cocaine. Scott was also accused of conspiracy to unlawfully distribute cocaine, which she successfully defeated when her motion for a directed verdict was granted. Scott was sentenced to a term of fifteen (15) years in the custody of the Mississippi Department of Corrections, with the first ten (10) years to be served and the remaining five (5) years to be served on post release supervision. Scott was also ordered to pay a $5,000 fine and restitution of $110 to the Mississippi Bureau of Narcotics plus attorney fees of $500 and court costs.
¶ 2. The circuit court denied Scott's motion for a new trial, or in the alternative, a j.n.o.v. Scott now appeals requesting a reversal of her conviction and a remand to circuit court for a new trial.
FACTS
¶ 3. Ginny Burrow, an undercover informant, bought drugs from Sara Scott, otherwise known as "Tic", at Scott's home on Climmons Road in Pike County on December 4, 1997. Law enforcement officers had placed a tape recording device on Burrow, searched her person and automobile, and provided her with one hundred dollars to purchase drugs. The recorder and transmitter were placed in Burrow's clothes for her protection and to collect incriminating evidence against Scott. Burrow had previously provided officers information about an illegal crystal methamphetamine operation in Franklin County and had approached narcotics agent Art Thomas with an offer to act as an informant in the hope that it would help her reduce her sentence for twelve counts of check forgery.
¶ 4. As Burrow drove down Climmons Road toward Scott's house, she was followed closely by Agents Reeves and Aldridge, who only momentarily lost sight of her. The audio tape recorded Burrow approaching the house and Gatlin telling her to follow him to the back of the house. Burrow knew Scott and Jasper Gatlin, Scott's son, for six months prior to this drug transaction. Scott was in her bedroom watching a movie with her boyfriend. Burrow and Scott spoke for a few minutes before Burrow asked if she could purchase one hundred dollars' worth of crack cocaine. The audio tape of the transaction indicates Scott stated that she would do business as long as police were not involved. Scott told Gatlin to hand her a tray sitting on a dresser that had a large piece of crack cocaine placed on it. Scott subsequently asked Gatlin to cut off a piece for Burrow with a razor. Burrow gave Scott one hundred dollars for the crack, and Scott placed the crack in Burrow's hand. Burrow left, holding the piece of crack in her hand until delivering it to Agent Thomas. Once Burrow had driven back to the agents, they confiscated the crack from her as well as the audio tapes, recorder and transmitter. They also conducted another search of Burrow, finding that she no longer had the one hundred dollars they had given her to make the drug buy.
¶ 5. Burrow identified Scott as having a decorative gold cap on a tooth that could be slipped on and off. At trial Scott called defense witnesses who stated that they had never seen Scott wearing a gold tooth. Scott testified denying that she had ever sold drugs to anyone. She also denied that she had a gold tooth. She also pointed out that she was 4'11" and weighed approximately 190 pounds, instead of 5' and 150 pounds as described by Burrow. Testimony of Crime Lab employee Lea Heath at trial showed that the substance sold to Burrow weighed .5 grams and was indeed cocaine.
DISCUSSION
¶ 6. Scott contends that she should not have been limited by the trial judge in her cross-examination of Burrow. Scott was allowed to question Burrow regarding her prior convictions, but not about whether there were any pending indictments against Burrow. Scott claims that questioning about Burrow's possible pending indictments should have been allowed because it could show why the witness may have been favorable to the State. A thorough review of the record does not reveal whether Burrow had any pending indictments at the time of her being questioned at this trial.
¶ 7. The attempted cross-examination and subsequent objection occurred as follows:
¶ 8. The trial court sustained the objection based upon M.R.E. 609(a) which states:
¶ 9. Scott claims that she should have been allowed to cross-examine about pending indictments to determine if there were any "deals" with the prosecution that could have influenced Burrow's testimony. Scott refers to M.R.E. 611 which states in pertinent part:
M.R.E. 611. Scott asserts that M.R.E. 611(b) provides support because it allows for "wide-open cross examination" as long as the matter is relevant. M.R.E. 611(b) cmt.; State Highway Comm'n v. Havard, 508 So.2d 1099, 1102 (Miss.1987). Scott also states that a judge may limit cross-examination to serve one of the purposes stated in M.R.E. 611(a) such as to make the examination effective for ascertaining the truth; avoid wasting time; or to protect witnesses from harassment or undue embarrassment. M.R.E. 611(b) cmt.; see also Johnston v. State, 618 So.2d 90, 93-94 (Miss.1993)
; Sayles v. State, 552 So.2d 1383, 1386 (Miss.1989).
¶ 10. Scott also refers to M.R.E. 616 which provides the following:
M.R.E. 616. Scott argues that she as a defendant, in light of Rule 616, should be given wide latitude to discover the truth about the State's main witnesses. Scott presents case law which she believes shows how this Court has allowed cross-examination to determine why a witness may be favorable to the State.
¶ 11. Scott relies on Bevill v. State, 556 So.2d 699 (Miss.1990), where it was stated:
(i)n this case the defendant's purpose for developing the facts as to this conviction was not simply to discredit (the witness) because he had been convicted of such a crime (which may very well have been inadmissible under some provision of Rule 609), but to ferret out any motive or reason (the witness) might have to be such a favorable state witness.
Id. at 713-14. Scott also refers to Suan v. State, 511 So.2d 144 (Miss.1987) which states:
"(e)vidence that a material witness has received favored treatment at the hands of law enforcement authorities, particularly where that witness is himself subject to prosecution, is probative of the witness' interest or bias and may be developed through cross examination or otherwise presented to the jury.
Id. at 147-48 (citing Malone v. State, 486 So.2d 367, 368-69 (Miss.1986); Hall v. State, 476 So.2d 26, 28 (Miss.1985); Barnes v. State, 460 So.2d 126, 131 (Miss. 1984); King v. State, 363 So.2d 269, 274 (Miss.1978); Sanders v. State, 352 So.2d 822, 824 (Miss.1977)). Scott alludes to the fact that both the State and Burrow claimed that Burrow did not receive help with her prior conviction, but that the jury was denied evidence about cases still pending against Burrow. Scott believes that her counsel should have been afforded the opportunity to "ferret out" any deals or Burrow's hope for possible deals with the State.
¶ 12. Scott refers to Nalls v. State, 651 So.2d 1074, 1076 (Miss.1995), which states, "(t)he right of confrontation and cross-examination... extends to and includes the right to fully cross examine the witness on every material point relating to the issue to be determined that would have...
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