Summerall v. State

• Decision Date: 26 January 1999
• Docket Number: No. 97-KA-00949COA.,97-KA-00949COA.
• Citation: 734 So.2d 242
• Parties: Frederick SUMMERALL a/k/a Fredrick L. Sumrall a/k/a Fredrick Lee Sumrall, Sr. a/k/a `Freddie', Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

734 So.2d 242

Frederick SUMMERALL a/k/a Fredrick L. Sumrall a/k/a Fredrick Lee Sumrall, Sr. a/k/a `Freddie', Appellant, v. STATE of Mississippi, Appellee.

No. 97-KA-00949COA.

Court of Appeals of Mississippi.

January 26, 1999.

H.W. `Sonny' Jones, Jr., Meridian, Attorney for Appellant.

Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.

BEFORE THOMAS, P.J., COLEMAN, AND DIAZ, JJ.

DIAZ, J., for the Court:

¶ 1. Frederick Sumrall was tried and convicted of sale of cocaine in the Clarke County Circuit Court. Aggrieved of this judgment, Sumrall appeals to this Court asserting the following issues as error: (1) the trial court erred by admitting an audiotape into evidence because the State failed to comply with Mississippi Code Annotated §§ 41-29-501 through XX-XX-XXX, dealing with the interception, recording, and admissibility of oral communications; (2) the evidence was insufficient to support a verdict of guilty; and (3) the trial court received improper evidence at the sentencing hearing. Finding no error, we affirm.

FACTS

¶ 2. On May 14, 1996, Narcotics Agents Jimmy Kirkman, Allen Anderson, Gartell Willis, and C.J. Cranford, met in Clarke County, Mississippi to discuss plans to conduct an undercover drug investigation in Quitman, Mississippi. Agent Anderson was provided a body transmitter and $100 in state funds. Anderson traveled to a trailer on Bay Street in Quitman. Anderson knew this trailer was the residence of Freddie Sumrall. When Anderson arrived no one was at the trailer. He left the trailer and as he was driving through Quitman, he noticed a vehicle he believed to be Sumrall's. He met the vehicle, turned around, got behind it, and followed the vehicle back to Sumrall's residence. Anderson parked on the side of the street, and Sumrall parked on the opposite side. Anderson indicated that he wanted to buy something. Sumrall asked him how much, and Anderson indicated that he wanted to purchase $100 worth of crack cocaine. Sumrall asked Anderson to return in ten minutes. When Anderson returned, Sumrall and two other males were walking away from the trailer, and Sumrall told Anderson to park in the parking lot of the Sumrall Park by the pavilion. Sumrall was standing beside Anderson's vehicle and started questioning Anderson about whether he was a narcotic's officer. Anderson denied this and after a lengthy discussion, the two walked to a picnic table. Sumrall sat at the picnic table and told Anderson, "it's in the bag." Anderson saw what appeared to be crack cocaine in a plastic bag inside a white paper bag. Anderson gave Sumrall $100. The two talked for a little while and Anderson drove away.

¶ 3. Agents Kirkman, Willis, and Cranford provided surveillance in their vehicle by listening to the transmission over the body transmitter, but were unable to see the transaction.

¶ 4. Anderson then proceeded to a post-buy meeting. Agent Joey Waller, who was in charge of the Wayne/Clarke/Jasper Narcotics Task Force at the time of the sale, met the officers at the post-buy meeting. Anderson handed Waller the crack cocaine and the audiotape. Waller took the cocaine to the Meridian Crime Lab.

¶ 5. Grady Downey, a forensic scientist from the Mississippi Crime Laboratory, testified that he had analyzed the rocks and determined that they were cocaine. Thereafter the State rested.

¶ 6. Demarco Clark was first to testify for the defense. He testified that he was in Sumerall Park on May 14, 1996. Clark stated that he was eating chicken at the picnic table when Anderson drove up. He testified that he did not see any transaction occur between Anderson and Sumrall. During cross-examination, Clark denied that he had told the prosecutor that he reached the park after Anderson had arrived.

¶ 7. The defense next called Terrance Thigpen. Thigpen was in prison garb and testified that he was incarcerated at the South Mississippi Correctional Institution in Leaksville, Mississippi for the sale of crack cocaine. Thigpen testified that he was in the Sumerall Park on May 14, 1996. He stated that he saw a guy pull up in a car and then approach Sumrall and ask to buy some cocaine. Thigpen testified that no one sold the man cocaine and he did not see any money change hands. During cross-examination, Thigpen testified that he did not see any drugs, but did see the agent put something in a Sprite can, get a bag, and leave.

¶ 8. Frederick Lee Sumrall testified on his own behalf. He testified that Anderson pulled up to his trailer while he was sweeping. Anderson asked him if anyone had "anything." Sumrall stated that he told Anderson to check with some men that were in the park. Anderson stated that he would be back in ten minutes. Anderson arrived twenty to twenty-five minutes later and got out of his vehicle. Sumrall asked Anderson if he was "a narcotics." He testified that Anderson became mad and started cussing him. Sumrall stated that he did not say anything about any drugs, nor did he see any that day. As Anderson was leaving, he picked up a bag and walked off. Sumrall did not see any money. Right before Anderson left he pitched a drink can at Sumrall. Sumrall testified he did not know what was in the can.

¶ 9. During cross-examination, Sumrall testified that Anderson had been to his trailer before and asked him several times for drugs. Sumrall told Anderson each time that he did not sell drugs. On May 14, 1996, when Anderson drove up the first time, Sumrall told Anderson he did not have any drugs, but told him that one of the men in the park may have drugs. Sumrall then asked some men in the park if they had "anything," and one "said something about 10 minutes, and I referred him to 10 minutes." When Anderson came back, Sumrall asked Anderson if he was a narcotic's agent. Anderson denied this. After talking, while sitting on a picnic table, Anderson looked inside a bag and picked it up. As Anderson was leaving, he picked up a drink can that was on the ground and pitched it toward Sumrall.

¶ 10. After Sumrall testified, the defense rested. The State called Agent Anderson as a rebuttal witness. The prosecution asked Anderson whether he possessed a Sprite can that day. Anderson testified that when Sumrall told him to come back in ten minutes, he went to a convenience store and purchased a Sprite. When he came back, Anderson had the can in his hand. Anderson transferred the money to Sumrall by handing Sumrall the money between his hand and the can.

¶ 11. Thereafter, the State and defense finally rested. After deliberations, the jury agreed with the State's version of events and found Sumrall guilty of sale of cocaine.

DISCUSSION

I. THE STATE FAILED TO COMPLY WITH MISSISSIPPI CODE ANNOTATED SECTIONS 41-29-501 THROUGH XX-XX-XXX, DEALING WITH THE INTERCEPTION, RECORDING, AND ADMISSIBILITY OF ORAL COMMUNICATIONS.

¶ 12. Mississippi Code Annotated §§ 41-29-501 to -537 (Rev.1993 & Supp. 1998) deals with the interception of wire or oral communications. During Sumrall's trial, the State introduced a tape recording of the drug transaction. Agent Kirkman testified to the contents of the tape. Sumrall argues in his brief that the court below ignored the mandates of Mississippi Code Annotated §§ 41-29-501 to -537; however, Sumrall does not point this Court to the specific section, or sections which the lower court failed to follow.

¶ 13. At the outset we must note that Sumrall did not object to the admission of the tape. Since he did not make this argument to the trial judge he is consequently procedurally barred on appeal from raising an argument not put before the trial court. Handley v. State, 574 So.2d 671, 678 (Miss.1990); May v. State, 569 So.2d 1188, 1190 (Miss.1990); Dunaway v. State, 551 So.2d 162, 164 (Miss. 1989); Marks v. State, 532 So.2d 976, 984 (Miss.1988); Burney v. State, 515 So.2d 1154, 1157 (Miss.1987); Sand v. State, 467 So.2d 907, 910 (Miss.1985); Woods v. State, 393 So.2d 1319, 1325 (Miss.1981). Since no objection appeared in the record, and a contemporaneous objection is necessary to preserve an issue for appeal, the Court will presume that the trial court acted properly. Moawad v. State, 531 So.2d 632, 635 (Miss.1988); Ratliff v. State, 313 So.2d 386, 388 (Miss.1975).

¶ 14. Despite this procedural bar, Sumrall's first assignment of error is also without merit. The Mississippi Supreme Court recently addressed this Act and stated:

It is clear from a reading of the definitions and terms of the Act that the Act was intended to regulate recordings by the State of two or more parties without the knowledge of any of the parties. The Act was not intended to prevent police officials from outfitting police agents or confidential informants with "body wires" for use during police investigative activities.

Ott v. State, No. 97-KA-00718-SCT, 1998 WL 718242, at *8, 722 So.2d 576 (Miss. 1998). Therefore, the proper interpretation of this Act allows the evidence obtained from the transmission between Agent Anderson and Sumrall to be introduced at trial.

¶ 15. The State may introduce a recording of a drug transaction during trial. See Doby v. State, 557 So.2d 533, 541 (Miss.1990); Middlebrook v. State, 555 So.2d 1009, 1011-12 (Miss.1990). First, as a condition precedent to the admittance of this evidence, the tape must meet the requirement of authentification, under Mississippi Rule of Evidence 901. Doby, 557 So.2d at 541; Middlebrook, 555 So.2d at 1011-12. If a recording is properly authenticated pursuant to Rule 901(a) and relevant under 401 of the Mississippi Rules of Evidence, it is admissible. Middlebrook, 555 So.2d at 1011-12. The trial judge has broad discretion over the admissibility of evidence and will only be reversed for an abuse of discretion. Coleman v. State, 697 So.2d 777, 784 (Miss. 1997).

¶ 16. Kirkman testified and described the manner in which the recording was made. He testified that he had listened to the tape and the tape accurately reflected what he had heard over the...