Swington v. State, 97-KA-00591-SCT.
| Decision Date | 17 June 1999 |
| Docket Number | No. 97-KA-00591-SCT.,97-KA-00591-SCT. |
| Citation | 742 So.2d 1106 |
| Parties | Jerry SWINGTON a/k/a Jerry Lewis Swington v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
A. Randall Harris, Ridgeland, Attorney for Appellant.
Office of the Attorney General by Jolene M. Lowry, Attorney for Appellee.
BEFORE PRATHER, C.J., MILLS AND COBB, JJ.
MILLS, Justice, for the Court:
STATEMENT OF THE CASE
¶ 1. Jerry Swington appeals his conviction and sentence in the Pike County Circuit Court of unlawful possession of cocaine with intent to distribute within 1500 feet of a church and his adjudication as a habitual offender, in violation of Miss.Code Ann. §§ 41-29-139, -142 & -147 (1993), and Miss.Code Ann. 99-19-81 (1994). Finding no error, this Court affirms the judgment of the trial court.
STATEMENT OF THE FACTS
¶ 2. On October 11, 1996, Agent Kenneth Hicks of the Pike County Sheriffs Department, with the assistance of Agent Erik Allen, Investigator Robert Holmes, Deputy Dewayne Varnado, Officer Tadlock, and Officer Mark Anderson, conducted a controlled drug buy on the streets of McComb, Mississippi. The officers were in a van approaching the intersection of St. Augustine and Summit Street when they saw Antron Reed standing on the corner. Agent Hicks pulled the van to the curb and asked Reed if he knew where they could get "a twenty". Reed replied that he could get a twenty for them. He then went to Lumpkin's Café and returned with a rock of crack cocaine for which Hicks gave him twenty dollars. Hicks asked Reed if he could get some more cocaine. Reed replied affirmatively at which point Hicks directed his fellow officers to arrest Reed.
¶ 3. Upon being questioned as to the source of the cocaine, Reed confessed that Jerry Swington had provided him with the cocaine to sell and he was waiting in Lumpkin's Café for Reed to return with the money. He testified that he acted as a go-between for Swington because Swington is a quadriplegic. Additionally, he told the officers that the cocaine was on the table in front of Swington underneath a newspaper.
¶ 4. The officers entered Lumpkin's Café and found Swington sitting at a table with a newspaper on it. Officer Holmes picked up the paper and found a rock of cocaine on the table. Swington told Holmes that the rock was not his, that it belonged to Roy Lee. Holmes testified that the only Roy Lee he knew was in Parchman for selling cocaine and that he was in Parchman on the day in question. Swington was sitting at the table alone, and no one in the café was near him. Reed testified at trial that he had a deal with Swington where he would sell the crack for Swington and he could keep some for himself. Reed admitted that he was addicted to cocaine.
¶ 5. In the face of the evidence against him, Jerry Swington denies that the crack cocaine found underneath the newspaper belonged to him. He argues that the fact that the officers found cocaine on the table at which he was sitting does not amount to constructive possession and that he did not know that the cocaine was there, although when Officer Holmes revealed the cocaine beneath the newspaper, Swington told him that it belonged to Roy Lee. He asserts that the only evidence against him is that of a self-professed cocaine addict who admitted to having been under the influence of drugs three days prior to trial.
¶ 6. It is Swington's position that Antron Reed is lying. His theory is that, upon being arrested by the police and faced with the pressure to reveal his supplier, Reed became frightened of the consequences that would befall him if he were to "rat out" his real supplier. Therefore, in order to protect himself, he told the officers that his supplier was Jerry Swington, a quadriplegic.
¶ 7. On March 10, 1997, the jury of the Pike County Circuit Court found Jerry Swington guilty of possession of cocaine with intent to distribute. Subsequently, on March 12, Swington was sentenced into the custody of the Mississippi Department of Corrections for sixty years without the benefit of reduction, suspension, probation, or parole. He was ordered to pay a fine in the amount of $100,000 and attorney fees and court costs, as well. Aggrieved, Swington appeals to this Court assigning as error the following issues:
¶ 8. During the testimony of Antron Reed, the attorney for the State made a proffer of evidence allowing the court an opportunity to evaluate the evidence and its admissibility. The evidence sought to be admitted showed that Reed had made an additional sale of cocaine just prior to being arrested for the sale in question. Swington objected to admission of the evidence on the basis of unfair surprise in violation of the rules of discovery. However, on appeal to this Court he argues that the evidence was admitted improperly and in violation of M.R.E. 404(b).
¶ 9. An objection on one specific ground waives all other grounds. Doss v. State, 709 So.2d 369, 387 (1996) (citing Conner v. State, 632 So.2d 1239, 1255 (Miss.1993)
overruled on other grounds, Weatherspoon v. State, 732 So.2d 158 (Miss.1999)). This Court explained the underlying bases for the existence of a contemporaneous objection rule in Oates v. State, 421 So.2d 1025, 1030 (1982) as follows: Swington is procedurally barred from asserting this objection for the first time on appeal. However, this Court will consider his argument in light of his claim of ineffective assistance of counsel.
¶ 10. The proffered testimony showed that Reed had made an additional sale of cocaine approximately thirty minutes prior to being arrested for selling a similar amount to the law enforcement officers. He testified that the cocaine sold in this earlier sale came from Swington also. The State claimed that, although this was evidence of a prior bad act proscribed by M.R.E. 404(b), this evidence was admissible as showing intent, motive and knowledge. Subsequent to the proffer, the State attorney argued the following:
Your Honor, again, this testimony goes to knowledge, intent, opportunity. It shows that Mr. Swington was aware of the presence of the rocks, that he allowed a prior sale to be made and that his supply was, in fact, dwelling [sic] as the sales were made. This was, essentially, the two transactions might even be called part of a common scheme or plan. He apparently was there to get rid of what he had and was systematically getting rid of it. I will not speculate as to whether he would have sold the last one had he not been arrested, but at least the first two were sold. We think it's probative as to those issues.
¶ 11. After conducting a M.R.E. 403 balancing analysis, the Court admitted the evidence because of its relevance to motive, plan, intent, and preparation in accordance with Rule 404(b). Reed then proceeded to testify before the jury with respect to the prior sale.
¶ 12. Mississippi Rule of Evidence 404(b) provides as follows:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
¶ 13. Evidence of prior involvement in the drug trade is admissible to prove intent to distribute. Holland v. State, 656 So.2d 1192, 1196 (Miss.1995). In Smith v. State, 656 So.2d 95 (Miss. 1995), the defendant was convicted of possession of cocaine with intent to distribute in violation of Miss.Code Ann. § 41-29-139 (1993). This Court determined that "given the difficulty of proving subjective intent, we see no reason to categorically exclude evidence of prior sales." Smith v. State, 656 So.2d at 99. Swington argues that due to the fact that the testimony regarding the prior sale came from a self-proclaimed drug addict, the testimony was not admissible. However, the fact that the testimony was elicited from the mouth of a cocaine addict is a matter affecting the credibility of the witness which is an issue to be determined by the jury. McClain v. State, 625 So.2d 774, 778 (Miss.1993); United States v. Davis, 15 F.3d 526 (6th Cir.1994) (). Additionally, this Court has held that ...
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