Thames v. State

• Decision Date: 31 March 2009
• Docket Number: No. 2007-KA-01573-COA.,2007-KA-01573-COA.
• Citation: 5 So. 3d 1178
• Parties: Virty Lee THAMES a/k/a Vert a/k/a Birddog, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

5 So.3d 1178

Virty Lee THAMES a/k/a Vert a/k/a Birddog, Appellant, v.STATE of Mississippi, Appellee.

No. 2007-KA-01573-COA.

Court of Appeals of Mississippi.

March 31, 2009.

Thomas Quitman Brame, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before KING, C.J., LEE, P.J., and CARLTON, J.

KING, C.J., for the Court.

¶ 1.In July 2006, Virty Lee Thames was arrested as a result of his involvement in a drug buy.On January 30, 2007, Thames was indicted by a Newton County grand jury for the sale of cocaine.A jury found Thames guilty of the sale of cocaine on August 10, 2007.Thames was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections pursuant to Mississippi Code Annotated section 41-29-139(a)(1)(Rev.2005).

¶ 2.Thames filed a motion for a judgment notwithstanding the verdict(JNOV) or, in the alternative, a motion for a new trial.The trial court denied Thames's motion.Aggrieved, Thames appeals and raises the following issues: (1) the jury verdict was the result of bias and passion and was contrary to the credible evidence adduced at trial and the law of this state; (2) trial counsel's performance amounted to ineffective assistance of counsel; and (3) Thames received an unfair trial because of cumulative errors in the investigation of this case and at trial.

FACTS

¶ 3.On February 15, 2006, the Mississippi Bureau of Narcotics (MBN), conducted a controlled drug buy using a confidential informant, Donna Keel.Keel, a former drug addict, was hired to assist the MBN in building a case against Otha Wheaton, an alleged drug dealer and Thames's employer.Keel had been used in prior cases as a confidential informant and had been beneficial to previous drug investigations.

¶ 4.On the aforementioned day, MBN agents placed a concealed video and audio recorder on the counter in Keel's trailer.The agents instructed Keel to call Wheaton and request $100 worth of crack cocaine.Keel informed the agents that Wheaton was unable to come, but Wheaton was sending Thames.Thames was a mechanic at Wheaton's garage.He was also a long-time drug addict and an associate of Keel.Both Keel and Thames testified that they often had done drugs together.After the call to Wheaton, agents gave Keel five twenty-dollar bills to purchase the drugs.

¶ 5.Agents Sidney Coleman and Warren Buchanan hid in another room in the trailer while Agent Stanley Wash conducted surveillance from his vehicle near the neighborhood of the trailer park.Subsequently, Thames arrived at Keel's trailer.Thames walked in and handed Keel a paper towel containing crack cocaine.Keel then gave Thames the five twenty-dollar bills.

¶ 6.Keel testified that she asked Thames for a cigarette then gave him the cash.Keel testified that the cash given to Thames was received from the MBN agents.Thames then asked her for a hit, but she informed him that the crack cocaine belonged to someone else.Thames left the trailer, and Agents Coleman and Buchanan appeared from the other room in which they had been stationed during the drug buy.Agent Coleman immediately notified Agent Wash that Thames was leaving the premises.Agent Wash testified that after Thames exited the trailer park, he followed him and copied the tag number from the vehicle that Thames was driving.An investigation later showed that the vehicle, identified as a red Blazertype SUV, was registered to Thames.Agent Wash, who was personally acquainted with Thames and his vehicle, verified that it was Thames and Thames's vehicle.

¶ 7.Because this was an ongoing investigation, Thames was not arrested at the time nor was the money retrieved.The substance given to Keel by Thames was turned over to Agent Coleman, who subsequently submitted it to the Mississippi Crime Laboratory for analysis.

¶ 8.Grady E. Downey, a forensic scientist with the Mississippi Crime Laboratory, testified that an analysis of the substance received from the MBN in reference to this case revealed that it contained cocaine base in the amount of 0.60 gram.This cocaine-base substance is commonly known as crack cocaine.

¶ 9.Thames was convicted on August 10, 2007, and sentenced to serve fifteen years in the custody of the MDOC.Thereafter, Thames filed a motion for a JNOV or, in the alternative, a motion for a new trial, which was denied.Aggrieved, Thames appeals.

ANALYSIS

I.WHETHER THE JURY VERDICT WAS THE RESULT OF BIAS AND PASSION AND IS CONTRARY TO THE CREDIBLE EVIDENCE AND SUFFICIENCY OF THE EVIDENCE.

¶ 10.Thames contends that there was insufficient evidence presented to prove the sale of cocaine beyond a reasonable doubt, and the verdict was against the overwhelming weight of the evidence.Thames argues that: (1)he did not possess the intent to participate in a sale; (2) Keel admitted she made the buy from Wheaton; and (3) the jury instructions provided the jury no real guidance on the lesser-included offense of possession.This Court has stated that:

When reviewing the denial of a motion for new trial based on an objection to the weight of the evidence, this Court will only reverse a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.Bush v. State,895 So.2d 836, 844(¶ 18)(Miss.2005).In making our determination, this Court is required to view the evidence in the light most favorable to the verdict; we will grant a new trial "only in exceptional cases in which the evidence preponderates heavily against the verdict."Id.However, in considering whether the evidence is legally sufficient to sustain a conviction in the face of a motion for [a] JNOV, our inquiry is "whether the evidence shows `beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.'"Id.at 843(¶ 16)(quotingCarr v. State,208 So.2d 886, 889(Miss.1968)).The critical question in dealing with such an issue is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Id.We will deem the evidence sufficient if the evidence against the defendant is such that "reasonable fairminded men in the exercise of impartial judgment might reach different conclusions on every element of the offense."Id.

Dixon v. State,953 So.2d 1117, 1121(¶ 13)(Miss.Ct.App.2006).

¶ 11.In this case, Thames was indicted for the sale of cocaine, which required the State to prove that Thames did willfully, unlawfully, feloniously, and knowingly sell and deliver a controlled substance in violation of Mississippi Code Annotated section 41-29-139(a)(1).Thames testified that he was in fact the man depicted in the video recording giving Keel what was identified as crack cocaine in a paper towel and receiving $100 in return.Viewing the evidence in the light most favorable to the prosecution, the video recording and testimony of both Keel and Thames are sufficient evidence of the sale of cocaine.

¶ 12.Next, Thames contends that he was only delivering the drugs to Keel, who admitted making the buy from Wheaton.Thames asserts that he did not possess the intent to sell, but he was merely the errand runner and not the real drug seller."[S]ubstantial knowing participation in the consummation of a sale or in arranging for the sale may render one guilty of the illegal sale of unlawful controlled substances within [Mississippi Code Annotated][s]ection 41-29-139.One who aids and abets another in such a context is an accessory before the fact and is guilty as a principal."Williams v. State,463 So.2d 1064, 1066(Miss.1985).Although Thames was delivering drugs for Wheaton, he knew that he was to give drugs to Keel in exchange for money.Therefore, his mere participation as a runner gives rise to a knowing participation in the sale of drugs, thus, making him guilty of the sale of an illegal controlled substance.Again, the video recording and testimony of both Keel and Thames are sufficient evidence of the sale of cocaine.

¶ 13.Thames also contends that even if we find evidence sufficient to support the verdict and he is not entitled to an acquittal as a matter of law, we should grant him a new trial, as the verdict is against the overwhelming weight of the evidence.We disagree.The evidence indicates that Thames delivered drugs to Keel and received money in exchange for the drugs.Thames testified that he was the man depicted in the video recording which shows the exchange of money for drugs between Thames and Keel.Examining the evidence in the light consistent with the verdict, we do not find that allowing the verdict to stand sanctions an unconscionable injustice.Therefore, this issue is without merit.

¶ 14.Next, Thames also asserts that although instruction D-4 was given, which might be considered a lesser-included-offense instruction, instruction S-1, the elements instructions, and D-5, the form of the verdict instruction, did not provide real guidance on the lesser-included offense of possession.

¶ 15.Jury instructions are to be read as a whole rather than in isolation.Burton v. Barnett,615 So.2d 580, 583(Miss.1993).If after doing so, the totality of the instructions fairly and accurately state the law and facts, this Court will not find error.Id."When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found."Wilkerson v. State,731 So.2d 1173, 1180(¶ 25)(Miss.1998).Instruction D-4, which was given, states:

The Court instructs the jury that if the jury finds a reasonable doubt that the Defendant did not sale cocaine but did, in fact, possess cocaine on February 15, 2006, then, in that event, the jury should find the Defendant guilty of possession of cocaine.

Instruction...