Smith v. State

• Decision Date: 20 February 2003
• Docket Number: No. 2001-KA-01235-SCT.,2001-KA-01235-SCT.
• Citation: 839 So.2d 489
• Parties: Thomas Edward SMITH v. STATE of Mississippi.
• Court: Mississippi Supreme Court

839 So.2d 489

Thomas Edward SMITH v. STATE of Mississippi.

No. 2001-KA-01235-SCT.

Supreme Court of Mississippi.

February 20, 2003.

David L. Walker, Batesville, for appellant.

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

Before PITTMAN, C.J., COBB and DIAZ, JJ.

DIAZ, JUSTICE, for the Court.

¶ 1. In July 2000, Trooper Dennis Darby of the Mississippi Highway Safety Patrol stopped a car with no license plate driven by Thomas Edward Smith (Smith). The car was also occupied by Davlyne Parker (Parker), riding in the passenger seat. Trooper Darby noticed a thirty-two ounce bottle of beer in the floor of the car and also noticed the passenger moving around suspiciously.

¶ 2. Smith and Parker allowed Trooper Darby to look around inside the car. While looking in the car, Trooper Darby noticed a cloth covering a bulge on the passenger side seat. Underneath the cloth, he found a plastic bag containing a whitish rock. Trooper Darby then arrested Smith and Parker and sent the rock to the Mississippi Crime Laboratory.

¶ 3. Smith was indicted by the Grand Jury of Panola County on two counts, Count I for conspiracy to possess cocaine and Count II for possession of cocaine with intent to sell. Smith was tried and convicted by a jury on both counts. The trial court sentenced Smith to serve a term of five years for Count I and fifteen years for Count II, with the sentences to run concurrently. Smith was also ordered to pay a fine of $5,000.00, a Mississippi Crime Laboratory fee of $125.00, $100.00 to the Mississippi Crime Victims' Fund and court costs.

¶ 4. Smith now appeals his conviction and sentence raising the following issues:

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING SMITH'S OBJECTION TO TESTIMONY OF PARKER AS TO SMITH'S OTHER CRIMES WITHOUT SPECIFICITY.

II. WHETHER THE TRIAL COURT ERRED IN DENYING SMITH'S MOTION FOR A JNOV.

III. WHETHER THE TRIAL COURT ERRED IN DENYING SMITH'S MOTION FOR A NEW TRIAL.

IV. WHETHER THE TRIAL COURT ERRED IN OVERRULING OBJECTION TO OFFER EVIDENCE OF A DEAL OFFERED BY SMITH.

V. WHETHER THE TRIAL COURT ERRED IN GRANTING A CONSTRUCTIVE POSSESSION OF COCAINE INSTRUCTION SUBMITTED BY THE STATE.

VI. WHETHER THE TRIAL COURT ERRED IN DENYING SMITH'S REQUEST FOR A LESSER-INCLUDED OFFENSE INSTRUCTION.

VII. WHETHER THE TRIAL COURT ERRED IN GIVING JURY INSTRUCTION C-13.

VIII. WHETHER THE TRIAL COURT ERRED IN REFUSING TO PERMIT THE JURY TO VIEW SMITH'S TRUCK.

IX. WHETHER SMITH'S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO TAKE PHOTOGRAPHS OF SMITH'S TRUCK OR TO MOVE THE TRIAL COURT FOR THE JURY TO INSPECT IT PRIOR TO RESTING SMITH'S CASE.

X. WHETHER THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION C-14.

XI. WHETHER THE TRIAL COURT ERRED IN DENYING SMITH'S MOTION FOR A MISTRIAL CONCERNING TESTIMONY OF HIS CONVERSATIONS WITH MR. CHRESTMAN.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING SMITH'S OBJECTION TO TESTIMONY OF PARKER AS TO SMITH'S OTHER CRIMES WITHOUT SPECIFICITY.

¶ 5. Smith argues that the trial court erred when it allowed Parker to testify that he had known Smith for a long time, that Smith regularly dealt drugs, and that Parker knew he would sell the drugs found in the truck. Smith specifically argues that testimony about prior drug sales was not specific enough or the alleged sales were not recent enough to be admitted as evidence.

¶ 6. The standard of review for admission of evidence is abuse of discretion. Farris v. State, 764 So.2d 411, 428 (Miss. 2000). Smith made a motion in limine to exclude this evidence. The trial court found that the evidence was admissible under Mississippi case law, M.R.E. 404(b), and conducted a M.R.E. 403 balancing test. The trial court also gave the jury a limiting instruction regarding the use of this evidence of other drug sales.

¶ 7. Evidence of prior drug sales is admissible under M.R.E. 404(b) to prove intent to distribute if it passes the M.R.E. 403 balancing test and is accompanied by a limiting instruction. Swington v. State, 742 So.2d 1106, 1111 (Miss.1999); Holland v. State, 656 So.2d 1192, 1196 (Miss.1995).

¶ 8. A case may be reversed based on the admission of evidence if the admission results "in prejudice and harm" or adversely affects a substantial right of a party. Farris, 764 So.2d at 428; Hansen v. State, 592 So.2d 114, 132 (Miss.1991).

¶ 9. Smith concedes that the trial court's admission of Parker's testimony is supported by the law as it stands, but urges this Court to modify the law by limiting proof of prior sales to proof that can be specifically identified and in recent time. State ex rel. Moore v. Molpus, 578 So.2d 624, 635 (Miss.1991), requires this Court to find that the law as it stands is pernicious, impractical, or mischievous in its effect and resulted in a detriment to the public in order to modify the law. This Court finds that Smith has produced no evidence to meet this test and affirms the trial court as to this issue.

II. WHETHER THE TRIAL COURT ERRED IN DENYING SMITH'S MOTION FOR A JNOV.

¶ 10. Smith argues that the State did not present sufficient evidence to prove Smith guilty and, as a result, the trial court erred in denying Smith's motion for JNOV.

¶ 11. Sufficiency questions are raised in motions for directed verdict and also in JNOV motions. McClain v. State, 625 So.2d 774, 778 (Miss.1993). In reviewing such motions, the trial court considers all of the credible evidence consistent with the defendant's guilt, giving the prosecution the benefit of all favorable inferences that may be reasonable drawn from this evidence. Id. This Court is authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence is such that reasonable and fair-minded jurors could not find the accused guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987).

¶ 12. We must give the prosecution the benefit of all "favorable inferences that may be reasonably drawn from the evidence" when deciding if enough evidence was presented to support the guilty verdict in this case. The testimony by Parker supports this Court's conclusion that the verdict was reasonable. Parker testified that Smith came to his house and asked Parker to accompany him somewhere. They drove in Smith's truck to Murphy Ridge Road, and Smith went into a house. After Smith returned to the truck, they started back to Batesville. Parker told Smith that he saw a highway patrolman, and Smith made a left turn. The patrolman turned on his lights, and Smith gave the cocaine to Parker and told him to run with it. Instead, Parker put it under a cloth under his seat. Smith drove to the railroad tracks so that Parker could cross and not be easily followed by Trooper Darby. Parker also testified that he did not run away with the cocaine because it was not his. These facts, along with others, were all heard and weighed by the jury. In evaluating the evidence presented, it is quite reasonable to understand how a jury could come to the conclusion it did in this case, and this Court sees no reason presented that would compel the trial judge to act differently then he did. We therefore hold that the trial judge did not err in denying Smith's motion for JNOV.

III. WHETHER THE TRIAL COURT ERRED IN DENYING SMITH'S MOTION FOR A NEW TRIAL.

¶ 13. Smith argues that the trial court erred in denying his motion for a new trial because the evidence does not support his conviction of conspiracy.

¶ 14. "In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will only reverse when convinced that the circuit court has abused its discretion in failing to grant a new trial." Herring v. State, 691 So.2d 948, 957 (Miss.1997). A new trial is not granted unless allowing the conviction to stand would sanction an unconscionable injustice. May v. State, 460 So.2d 778, 781 (Miss. 1984).

¶ 15. We conclude that the facts discussed in the previous issue also reflect that the trial court did not err in denying Smith's motion for new trial. There is no evidence that the circuit court abused its discretion when it did not grant a new trial. While there are cases where the facts presented in no way support the outcome and justice demands a new trial, this is clearly not one of them. The verdict was not against the overwhelming weight of the evidence, and this Court affirms the trial court as to this issue also.

IV. WHETHER THE TRIAL COURT ERRED IN OVERRULING OBJECTION TO OFFER EVIDENCE OF A DEAL OFFERED BY SMITH.

¶ 16. Smith argues that the trial court erred in admitting evidence during the State's rebuttal that Smith gave names of people who sell drugs to Jason Chrestman, Commander of the Panola and Tate Counties Narcotics Task Force, in a possible attempt to cut a deal under M.R.E. 408.

¶ 17. The standard of review of an admission or exclusion of evidence is abuse of discretion. Stallworth v. State, 797 So.2d 905, 908 (Miss.2001). M.R.E. 408 (Compromise and offers to compromise) provides that

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

M.R.E. 408 has a more ready application to civil cases. Armstead v. State, 805 So.2d 592, 597 (M...