Sturdivant v. State, 1998-KA-01092-SCT.

• Decision Date: 22 July 1999
• Docket Number: No. 1998-KA-01092-SCT.,1998-KA-01092-SCT.
• Parties: Henry STURDIVANT, Jr. a/k/a Henry A. Sturdivant, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

745 So.2d 240

Henry STURDIVANT, Jr. a/k/a Henry A. Sturdivant, Jr. v. STATE of Mississippi.

No. 1998-KA-01092-SCT.

Supreme Court of Mississippi.

July 22, 1999.

James A. Williams, Meridian, Attorney for Appellant.

Office of the Attorney General by W. Glenn Watts, Attorney for Appellee.

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

SMITH, Justice, for the Court:

STATEMENT OF THE CASE

Procedural History

¶ 1. Appellant Henry Sturdivant, Jr. (Sturdivant) was tried before a Lauderdale County Circuit Court jury for sale of cocaine. He was found guilty and given a fifteen (15) year sentence, with ten (10) years suspended, in the custody of the Mississippi Department of Corrections.

Statement of the Facts

¶ 2. Lauderdale County Deputy Sheriff Joshua Coleman was working as an undercover narcotics officer in Lauderdale County on January 8, 1997. He was fitted with a body transmitter underneath his clothing, and his automobile had a concealed camera under the visor pointed toward the driver's window.

¶ 3. As he pulled up to the corner of 32nd Avenue and 11th streets in Meridian at 5:29 p.m., he saw two black males. Deputy Coleman recognized one of the individuals as Jimmy Lee Ivy, but he did not know the other. He asked the two "could anybody serve me a 20?" The previously unknown individual, Sturdivant, came to his window and gave him what appeared to be cocaine in exchange for twenty dollars ($20). There were street-lights on, and Coleman got a good look at Sturdivant in the "hand to hand" exchange. Sturdivant's face was also captured on the hidden video.

¶ 4. Coleman later gave a description of the two suspects including the Band-Aid on the right side of Sturdivant's face. The Meridian Gang Task Force took these descriptions and went back to the scene to identify the suspects. When presented with "mugshot" photographs of the suspects by Detective Joel Walters, Coleman identified Sturdivant as the seller from whom he purchased the cocaine.

¶ 5. At trial, Coleman testified that he had "no doubt" that Sturdivant was the person who had sold him the cocaine. Walters corroborated that Coleman had given a detailed description of the suspect and had identified "mugshot" photographs of Sturdivant. Upon objection by the defense, these mugshots were not admitted into evidence because the trial court determined that they had suggestive police identification information written on them, such as "MPD," "DOB," etc.

¶ 6. State's Exhibit 4 was introduced into evidence as being the substance sold to Coleman by Sturdivant. Jamie N. Johnson from the Mississippi Crime Laboratory testified that this exhibit "contained.14 grams of cocaine."

¶ 7. During jury deliberations, the jury requested by handwritten note that they be allowed "to see Henry Sturdivant in person or by photo if possible." The trial court offered to allow either the previous unallowed mugshot photos with the objectionable markings removed or a short viewing of Sturdivant in front of the jury box. The defense had argued to the jury that this was a case of mistaken identity and that Sturdivant's was not visible on the video. The prosecution argued that the jury needed to see for themselves that Sturdivant was the individual on the video. Over Sturdivant's objection, the trial court allowed the viewing to occur.

¶ 8. On April 8, 1998, Sturdivant was found guilty. On May 8, 1998, he was sentenced to fifteen years, with ten suspended, in the custody of the Mississippi Department of Corrections. On May 15, 1998, Sturdivant filed a Motion for a New Trial arguing that the jury should not have been allowed the mid-deliberation viewing which prejudiced his right to a fair and impartial trial. He also filed a Motion for J.N.O.V. arguing the evidence was insufficient as a matter of law. On May 28, 1998, the trial court denied both of Sturdivant's motions.

¶ 9. Aggrieved, Sturdivant timely appeals to this Court and raises the following issues:

I. WHETHER A DEFENDANT IS DENIED A FAIR TRIAL, DUE PROCESS OF LAW AND FUNDAMENTAL FAIRNESS WHEN, AFTER THE EVIDENCE IS CLOSED AND DELIBERATIONS HAVE BEGUN, THE TRIAL JUDGE, UPON REQUEST BY THE JURY, REQUIRES THE DEFENDANT TO PARADE IN FRONT OF THE JURY, FOR A SECOND VIEW OF HIM, WHERE IDENTIFICATION IS THE PRIMARY ISSUE, AND THE JURY RETIRES AGAIN FOR FURTHER DELIBERATIONS AND RETURNS A VERDICT OF GUILTY.

II. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT A VERDICT OF GUILTY OR THE RESULT OF PREJUDICE AND BIAS AND THE CONVICTION SHOULD BE REVERSED AND THE DEFENDANT DISCHARGED.

STANDARD OF REVIEW

¶ 10. In Young v. City of Brookhaven, 693 So.2d 1355 (Miss.1997), we stated our standard of review concerning a trial judge's decision regarding the admission of evidence:

Under the Supreme Court's standard of review, the admissibility of evidence rests within the discretion of the trial court. Baine v. State, 606 So.2d 1076, 1078 (Miss.1992); Wade v. State, 583 So.2d 965, 967 (Miss.1991). However, this Court must also determine whether the trial court employed the proper legal standards in its fact findings governing evidence admissibility. Baine v. State of Mississippi, 606 So.2d at 1078. If in fact the trial court has incorrectly perceived the applicable legal standard in its fact findings, the Court applies a substantially broader standard of review. Id. However, a denial of a substantial right of the defendant must have been affected by the court's evidentiary ruling. Jackson v. State, 645 So.2d 921 (Miss.1994); Newsom v. State, 629 So.2d 611, 612 (Miss.1993); Collins v. State, 594 So.2d 29, 34 (Miss.1992). Furthermore, the trial court's discretion must be exercised within the scope of the Mississippi Rules of Evidence and reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs. Parker v. State, 606 So.2d 1132, 1137-1138 (Miss.1992).

Young, 693 So.2d at 1358 (quoting Peterson v. State, 671 So.2d 647, 655-56 (Miss. 1996)

).

¶ 11. On a question of overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Nelson v. State, 722 So.2d 656, 661 (Miss.1998); Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989). Only when the verdict of the jury is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will we disturb that verdict on appeal. Watson v. State, 722 So.2d 475, 480 (Miss.1998); Benson v. State, 551 So.2d 188, 193 (Miss. 1989).

¶ 12. The standard of review of a post-trial motion is abuse of discretion. Flowers v. State, 601 So.2d 828, 833 (Miss. 1992) (citing Robinson v. State, 566 So.2d 1240, 1242 (Miss.1990)

). As stated in Johnson v. State, 642 So.2d 924 (Miss. 1994), "[a] motion for new trial is discretionary with the trial judge and this Court will not order a new trial unless it is convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Johnson, 642 So.2d at 928 (collecting authorities).

LEGAL ANALYSIS

I. WHETHER A DEFENDANT IS DENIED A FAIR TRIAL, DUE PROCESS OF LAW AND FUNDAMENTAL FAIRNESS WHEN, AFTER THE EVIDENCE IS CLOSED AND DELIBERATIONS HAVE BEGUN, THE TRIAL JUDGE, UPON REQUEST BY THE JURY, REQUIRES THE DEFENDANT TO PARADE IN FRONT OF THE JURY, FOR A SECOND VIEW OF HIM, WHERE IDENTIFICATION IS THE PRIMARY ISSUE, AND THE JURY RETIRES AGAIN FOR FURTHER DELIBERATIONS AND RETURNS A VERDICT OF GUILTY.

¶ 13. Sturdivant contends that he was prejudiced by the trial court's allowing the jury to view him once deliberations had begun. The record indicates that the jury requested by hand-written note to view Sturdivant or a picture of him after deliberations had begun. The trial court offered to allow the mugshot photograph with the objectionable markings removed to go into the jury room or have the jury return to the box for a short viewing of Sturdivant. Defense counsel objected to both options, but the trial court decided to allow the jury a short viewing. The trial court explained, as follows:

The jury's duty is to make a decision as to whether or not the evidence is sufficient to cause them to believe beyond a reasonable doubt that either or both of these defendants are guilty. Obviously, they are ... struggling with the issue of identification versus misidentification, and the jury has made a specific request to view Mr. Sturdivant in person. It's unambiguous and I think that during the course of the trial the jury was asked by counsel to look at the defendant and draw their own conclusions as to whether or not that is the person on the video. The videotape is in evidence, and the TV and VCR are in the jury room. I am going to acquiesce [sic] the jury request because I think they are struggling to do what they believe to be the right and correct thing under the evidence and they need some help in making that determination. What I intend to do is have the jury brought back in and sit in the jury box, and David ask you to have Sturdivant to stand up and walk out in front of the jury box and stand there for about ten seconds and turn around and walk back and have a seat next to you at the counsel table. Then I will issue the jury back into the jury room for further deliberations.

¶ 14. Sturdivant cites Perkins v. State, 253 Miss. 652, 178 So.2d 694 (1965), for the proposition that it is reversible error for the trial court to allow the jury to view the defendant once deliberations have begun. In Perkins, the trial court committed reversible error where it granted a jury request to view the victim's scars although they had seen them during the trial. 253 Miss. at 656, 178 So.2d at 695.

¶ 15. Furthermore, the Perkins Court said as follows:

Ordinarily, the reopening of a case after it has been submitted to the jury and before verdict

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