Thomas v. State

• Citation: 711 So.2d 867
• Decision Date: 30 April 1998
• Docket Number: No. 96-KA-00457-SCT,96-KA-00457-SCT
• Parties: Walter THOMAS v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 867

711 So.2d 867

Walter THOMAS v. STATE of Mississippi.

No. 96-KA-00457-SCT.

Supreme Court of Mississippi.

April 30, 1998.

Azki Shah, Clarksdale, for Appellant.

Michael C. Moore, Attorney General, Scott Stuart, Special Asst. Atty. Gen., Jackson, for Appellee.

Before PITTMAN, P.J., and BANKS and WALLER, JJ.

WALLER, Justice, for the Court:

¶1 Walter Thomas appeals his conviction in the Circuit Court of Coahoma County for conspiracy to possess a controlled substance with the intent to transfer. He was sentenced to serve a term of five years under the supervision of the Mississippi Department of Corrections, with four years suspended. Aggrieved by the jury's verdict, Walter Thomas assigns the following as error:

I. WHETHER THE COURT VIOLATED THOMAS' RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE WHEN HE WAS FOUND GUILTY OF CONSPIRACY.

II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING INTO EVIDENCE THE "VORTICE TAPE" IN VIOLATION OF THOMAS' RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

¶2 After careful review of the record and briefs in this matter, this Court holds that Thomas' rights under the Double Jeopardy and the Confrontation Clauses were not violated and thus, affirms Thomas' conviction.

STATEMENT OF THE FACTS

¶3 The genesis of this case is the recovery of three micro cassettes which were discovered in the execution of a search warrant in the early morning hours of September 21, 1995, by Randy Corbin of the Mississippi Bureau of Narcotics. The tapes recorded conversations between Walter Thomas, Henderson Clark, Henry Vortice, and Fontroy Allen occurring prior to March 28, 1995. The discovery of these tapes prompted the investigation which resulted in this prosecution. Walter Thomas ("Thomas") was a shift supervisor with the Clarksdale Police Department; Henderson Clark ("Clark") was an officer with the Clarksdale Police Department; Henry Vortice ("Vortice") was a State Trooper who had previously been an officer with the Clarksdale Police Department; and, Fontroy Allen ("Fontroy")was a local drug dealer. According to the testimony and evidence developed at trial, the following events occurred.

¶4 Vortice (state trooper) was evidently "shaking down" Fontroy (drug dealer) and involved Clark (police officer) in communications regarding the shake down. Fontroy, through Thomas (police officer), indicated that he did not have the money to pay on a weekly basis, but could be helpful in another way. At a meeting with Thomas and Clark, Fontroy told Thomas that he could "set somebody up." The plan was that Thomas and Vortice would stop the person who Fontroy "set up" and take his drugs. The target of this plan was a man named Dave (David Drummond), a Jamaican whom Fontroy had bought drugs from previously. This conversation was taped by Fontroy. Some time later, Fontroy called Dave and told him he wanted ten pounds of marijuana. A week to a week and one-half later, Fontroy told Clark that Dave was coming through with the drugs. Later that same evening, Fontroy met with Thomas and Vortice at a Pizza Hut and told them the route that Dave would be traveling. This conversation was also taped by Fontroy.

¶5 Thomas and Vortice stopped "a guy" and, according to Clark, made Fontroy pay them $1,000 because they found nothing. According to Fontroy, following the Pizza Hut meeting, he observed blue lights at a traffic stop and subsequently, Thomas brought him approximately eight and one/half pounds of marijuana, for which he, Fontroy, was to pay $3,000, in addition to the $1,000 he already owed the officers. Fontroy paid the $3,000 to Thomas and some ten days later paid $1,000 to Thomas.

¶6 After the meeting where Fontroy paid the $1,000, Fontroy, Thomas, and Vortice discussed another set-up. The target of this set-up was a guy called "Cuz", whose real name was Edgar Dickerson. According to Fontroy, he was to sell Cuz four pounds of marijuana, evidently to be then stolen by Thomas and Vortice. Fontroy again taped this meeting.

¶7 According to Fontroy, he sold the four pounds of marijuana to Cuz, as planned. Fontroy then called Thomas to tell him what kind of car Cuz and another person were driving. Fontroy stated that later that night he met with Thomas and Vortice who gave him four pounds of marijuana for which he paid them $2,000. Both Cuz and Zenles Newby, the passenger in Cuz's car, stated that they were stopped by a trooper and an officer, who at gunpoint, took the four pounds of marijuana, $350 from Newby and approximately $150 from Cuz. Neither was able to identify the officers who stopped them.

¶8 On September 21, 1995, a search warrant was executed on Fontroy's residence. During the course of the search, officers seized three microcassette tapes that contained conversations of meetings between Fontroy and others, including Walter Thomas, the appellant. These conversations led the investigating officers to believe that Thomas was involved in the conspiracy.

¶9 Vortice was interviewed on September 27, 1995, by Sammy Aldridge of the Criminal Investigation Bureau of the Highway Patrol. As a result of that interview, a body recorder and bodywire were placed on Vortice for the purpose of recording conversations between Thomas and Vortice. Later that night, Vortice met with Thomas, who made incriminating statements regarding his activities in the alleged conspiracy. Leon Williams, an agent with the Mississippi Bureau of Narcotics, was inside Vortice's house, monitoring and recording the conversation. In essence, two tapes were made, one from the recorder on Vortice and one in the room in the house made by Leon Williams monitoring the conversation between Vortice and Thomas. Vortice committed suicide on September 28, 1995.

¶10 As a result of the investigation, a five count indictment was entered against Thomas on December 12, 1995. Count I indicted Thomas for willfully, unlawfully, and feloniously conspiring with Clark, Vortice, and Fontroy, under the color of his office as a law enforcement officer, to stop and detain a person with possession of a controlled substance, obtain possession of that controlled substance, and transfer said controlled substance. Counts II and V indicted Thomas with the transfer of a controlled substance--marijuana of more than one kilogram. Counts III and IV indicted Thomas with armed robbery with respect to Newby and Dickerson (Cuz).

¶11 Trial was held in Cohoma County Circuit Court, beginning on February 19, 1996. The trial judge directed verdicts in Thomas' favor on Counts II and V, which charged that Thomas and others had transferred marijuana to Fontroy. The judge found that there was no proof that the purported drugs were in fact drugs, therefore, he found that the State had failed to prove its case as to these two counts. The jury found Thomas not guilty of armed robbery on Count III and did not reach a verdict on the Count IV armed robbery. However, the jury returned a guilty verdict for conspiracy under Count I of the indictment. Thomas was sentenced to five years in an institution under the supervision of the Mississippi Department of Corrections, with four years suspended.

¶12 From this conviction, Thomas now appeals.

DISCUSSION OF THE LAW

I. WHETHER THE COURT VIOLATED THOMAS' RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE WHEN HE WAS FOUND GUILTY OF CONSPIRACY.

¶13 Thomas urges this Court to reverse and render his conviction for conspiracy, as this conviction violates his double jeopardy rights. He asserts that the charge of conspiring to distribute a controlled substance was subsumed by the charges of transfer, sale, or distribution of a controlled substance. Thomas argues that the State should not have been allowed to proceed with the conspiracy charge given the directed verdicts on what he calls the "substantive charges."

¶14 Double jeopardy embodies three separate constitutional protections. " 'It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' " White v. State, 702 So.2d 107, 109 (Miss.1997) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. at 2076-77, 23 L.Ed.2d 656 (1969) (footnotes omitted)).

¶15 This Court recently addressed the issue of double jeopardy in Cook v. State, 671 So.2d 1327 (Miss.1996):

The Double Jeopardy Clause of the Fifth Amendment reads as follows, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This proscription "has been applied to the states through the Due Process Clause of the Fourteenth Amendment."

McNeal v. Hollowell, 481 F.2d 1145, 1149 (5th Cir.1973), cert. denied, 415 U.S. 951, 94 S.Ct. 1476, 39 L.Ed.2d 567 (1974) (citations omitted).

Double jeopardy protection applies to successive prosecutions for the same criminal offense. United States v. Dixon, 509 U.S. 688, 694, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993). The Supreme Court has also held that:

In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the "same-elements" test, the double jeopardy bar applies.... The same-elements test, sometimes referred to as the "Blockburger " test, inquires whether each offense contains an element not contained in the other; if not, they are the "same offence" and double jeopardy bars additional punishment and successive prosecution.

Dixon, 509 U.S. at 696, 113 S.Ct. at 2856 (citations omitted). In Dixon, the Court recognized that in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), it adopted an additional test that "a subsequent prosecution must satisfy a 'same-conduct' test to avoid the double jeopardy bar." Id. at 697, 113 S.Ct. at 2856. However, the Court concluded that "Grady must be overruled.... Grady lacks...