Sullivan v. State
| Decision Date | 04 November 1999 |
| Docket Number | No. 98-KA-00521-SCT.,98-KA-00521-SCT. |
| Citation | 749 So.2d 983 |
| Parties | Thomas Ethren SULLIVAN v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Herbert H. Klein, III, Hattiesburg, Attorney for Appellant.
Office of the Attorney General by John R. Henry, Attorney for Appellee.
BEFORE SULLIVAN, P.J., SMITH AND COBB, JJ.
SMITH, Justice, for the Court:
STATEMENT OF THE CASE
¶ 1. Thomas Ethren Sullivan appeals his March 4, 1998 conviction in the Forrest County Circuit Court for the crimes of conspiracy and sale of amphetamine. He was then sentenced to ten years in the custody of the Department of Corrections and a $25,000 fine for the conspiracy charge and to a consecutive fifteen year sentence in the custody of the Department of Corrections and a $25,000 fine for the sale of amphetamine charge. Sullivan appeals his conviction and sentence citing the following issues:
I. DID THE TRIAL COURT ERR IN ADMITTING THE TESTIMONY OF SARAH BRADLEY, SIMONE REEVES, AND SIMPSON COUNTY DEPUTY RANDY CRAWFORD, AND IN DETERMINING THAT THE JURY SHOULD DECIDE WHETHER CERTAIN STATEMENTS MADE BY KARLTON BRADLEY WERE IN FURTHERANCE
OF THE CONSPIRACY?
II. DID THE TRIAL COURT ERR IN ALLOWING THE STATE'S EXHIBITS OF CONTROLLED SUBSTANCES TO BE INTRODUCED?
III. DID THE TRIAL COURT ERR IN REFUSING TO GRANT A MISTRIAL AFTER ALLOWING THE TESTIMONY OF AGENT SHELBOURN REGARDING THE GUILTY PLEAS AND GUILTY VERDICTS OF CODEFENDANTS?
IV. DID THE TRIAL COURT ERR IN REFUSING TO GRANT A MISTRIAL AFTER THE ASSISTANT DISTRICT ATTORNEY CALLED THE DEFENDANT A "DANGER TO SOCIETY"?
V. DID THE TRIAL COURT ERR IN ALLOWING RE-CROSS EXAMINATION OF THE DEFENDANT, WHEN THE DEFENDANT ARGUES THAT THE QUESTIONS WERE OUTSIDE THE SCOPE OF THE RE-DIRECT QUESTIONING?
VI. DID THE TRIAL COURT ERR IN REFUSING TO GRANT CIRCUMSTANTIAL EVIDENCE INSTRUCTIONS PROPOSED BY THE DEFENDANT?
VII. DID THE TRIAL COURT ERR IN REFUSING TO GRANT DEFENDANT'S PROPOSED JURY INSTRUCTION D-14?
VIII. DID THE TRIAL COURT ERR IN REFUSING TO GRANT DEFENDANT'S MOTION FOR A NEW TRIAL AND MOTIONS FOR A DIRECTED VERDICT, JUDGMENT NOTWITHSTANDING THE VERDICT, AND JURY INSTRUCTION D-7?
IX. DID THE TRIAL COURT ERR IN INSTRUCTING THE JURY TO CONTINUE ITS DELIBERATIONS WHEN ONE JUROR STATED THAT THE JURORS WERE "HOPELESSLY DEADLOCKED"?
X. WAS THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS PREJUDICIAL TO THE DEFENDANT?
XI. DID THE TRIAL COURT ERR IN IMPOSING A SENTENCE THAT WAS DISPROPORTIONATE TO THE CRIME ITSELF AND TO THE SENTENCES OF SIMILARLY SITUATED DEFENDANTS?
FACTS
¶ 2. Sullivan's conviction is based on evidence arising out of two separate incidents, one on May 29, 1996, and the other on June 13, 1996. The facts of the first incident are so similar to the second incident that, for purposes of addressing the issues involved, it is sufficient to only recount the facts surrounding the first incident. Sullivan acknowledges that on both dates of the alleged sales of amphetamine he met Karlton Bradley at his home in Simpson County, but Sullivan testifies that Bradley was there to sell him cocaine. Sullivan states that he has a cocaine addiction. However, Sullivan claims that he at no time supplied amphetamine to Bradley.
¶ 3. During the time at issue, Karlton Bradley was regularly selling drugs to Simone Reeves. Reeves was an undercover agent with the Mississippi Bureau of Narcotics, and she testified at trial regarding her relationship with Karlton Bradley. On May 29, Reeves and Bradley spoke on the telephone, and she asked him if she could buy amphetamine from him. Bradley then called Sullivan, as evidenced by phone records and an audio tape that recorded Bradley's incoming and outgoing calls. The calls were monitored by the Bureau of Narcotics. During the May 29 call, Bradley said to Sullivan, Sullivan claims that Bradley is referring to guns that Sullivan was trying to sell to support his cocaine habit. Later that afternoon, Karl Bradley and his wife Sarah Bradley drove to Sullivan's Simpson County house. Sarah Bradley testified Karl did not keep much amphetamine in their apartment. Sarah testified that Karl said he needed to pick up amphetamine for, Reeves, and that he was paying for the amphetamine at least partially with cocaine. She stated that she and Karl drove to Sullivan's house, where Sullivan was sitting in his truck. She watched Karl get out of the truck and get into Sullivan's truck. Karl then came back and got in his truck with Sarah and told her he had to pick up the newspaper lying on the side of the road. Karl went to pick up the newspaper and returned to tie truck. Inside the newspaper there was a sandwich bag containing a pasty substance.
¶ 4. Later that evening Bradley paged Reeves, and she came to his apartment in Hattiesburg. She gave him $3,800.00 ($3,900 for the June 13 purchase), and he gave her a sandwich bag containing two ounces of a brown, pasty substance. Reeves handed the bag to another MBN agent, who sent the bag to the Mississippi Crime Laboratory. Both lab experts who tested the substances purchased by Reeves from Bradley testified that the bags contained amphetamine.
DISCUSSION
I. DID THE TRIAL COURT ERR IN ADMITTING THE TESTIMONY OF SARAH BRADLEY, SIMONE REEVES, AND SIMPSON COUNTY DEPUTY RANDY CRAWFORD, AND IN DETERMINING THAT THE JURY SHOULD DECIDE WHETHER CERTAIN STATEMENTS MADE BY KARLTON BRADLEY WERE IN FURTHERANCE OF THE CONSPIRACY?1
¶ 5. The rule prohibiting the admission of hearsay testimony into evidence at trial makes an exception for conspiracy situations; a statement is not hearsay if it is made by a co-conspirator and the statement is made during the course and in furtherance of the conspiracy. See M.R.E. 801(d)(2)(E). This Court has clearly followed this rule of evidence. See Ponthieux v. State, 532 So.2d 1239 (Miss.1988); Nixon v. State, 533 So.2d 1078 (Miss.1987). However, before the statement of an alleged co-conspirator can be admitted as evidence, the trial court must determine that there is preliminary evidence of a conspiracy. See Tavares v. State, 725 So.2d 803, 809 (Miss.1998) (citing Ponthieux, 532 So.2d at 1243-44). The appellate court's freedom to review a trial court's finding-that a conspiracy has reasonably been established by the evidence presented prior to the testimony at issue-is restricted to a "clearly erroneous" standard of review. Tavares, 725 So.2d at 809. Also, the appellate court looks at the entire record when determining whether a conspiracy had been established. See id. (citing Ponthieux, 532 So.2d at 1243-44).
¶ 6. Sullivan's sole argument is that the testimony of Sarah Bradley and Simone Reeves is inadmissible. He claims that their testimony is hearsay because the State failed to obtain a ruling by the trial court judge that there was sufficient evidence of a conspiracy. However, Sullivan ignores the language in a case that he himself cites. According to Nixon v. State, "This Court rejects the notion of the defendant that the trial court has to specifically make such a finding in the record." 533 So.2d at 1092. There is no need for the trial court to make a finding that a conspiracy existed before admitting such testimony. Additionally, this Court has the freedom to look at the entire record. In doing so, we can see that in the case of Sarah Bradley, four witnesses had already offered their testimony regarding Karlton Bradley's phone records, the content of relevant phone conversations, and the exchange between Bradley and Reeves. ¶ 7. The testimony of Simone Reeves included conversations she had with Karlton Bradley and the drug purchases she made from him. Because Bradley's drug sales are evidence of the suspected conspiracy, and Reeves's testimony went directly toward establishment of that conspiracy, a review of the entire record suggests that the admission of Reeves's testimony was well-founded. It is also the case that Reeves's testimony pertained to her relationship with Karlton Bradley, not to incidents about which she did not have firsthand knowledge.
¶ 8. Sullivan alleges that the testimony of Deputy Randy Crawford contained inadmissible hearsay because "Deputy Crawford was allowed to testify as to a statement made by Ken Ritchie regarding which vehicle he requested Deputy Crawford to surveil [sic]." However, Sullivan fails to address the fact that the statements Crawford repeated were statements that Ritchie made to him when giving him instructions.
¶ 9. Sullivan also objects to the trial court's characterization of the ruling regarding evidence of a conspiracy as a question of fact for the jury. The exchange occurred as follows:
Mr. Klein: Your Honor, you let the jury decide what's hearsay? [attorney for Sullivan] The Court: No. I'm going to let the jury decide whether it was in furtherance of the conspiracy.
Given that there was no procedural error on the part of the trial court-that is, he did not fail to make a ruling on the sufficiency of the evidence, because none was appropriate-and that it is reasonable for this Court to hold that there was sufficient evidence of a conspiracy, the judge's statement that existence of a conspiracy was a question of fact for the jury can be interpreted to mean that the jury had the freedom to come to its own conclusions regarding the sufficiency of the evidence of the conspiracy. His language, although not necessarily correct as a term of art, constitutes harmless error. This issue is without merit.
II. DID THE TRIAL COURT ERR IN ALLOWING THE STATE'S EXHIBITS OF CONTROLLED SUBSTANCES TO BE INTRODUCED?
¶ 10. The procedure to establish the admissibility of evidence at trial is set out in Mississippi Rules of Evidence 104; the rules of evidence grant much deference to the trial court judge to make preliminary rulings on issues of admissibility. See M.R.E. 104. The case law most closely on point is Barnette v. State, 478 So.2d 800 (Miss.1985). In Barnette the defendant alleged that the chain...
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