Towner v. State

• Citation: 837 So.2d 221
• Decision Date: 04 February 2003
• Docket Number: No. 2001-KA-01164-COA.,2001-KA-01164-COA.
• Parties: Willie Charles TOWNER, Appellant, v. STATE of Mississippi, Appellee.
• Court: Court of Appeals of Mississippi

837 So.2d 221

Willie Charles TOWNER, Appellant, v. STATE of Mississippi, Appellee.

No. 2001-KA-01164-COA.

Court of Appeals of Mississippi.

February 4, 2003.

Laurel G. Weir, Philadelphia, attorney for appellant.

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

Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.

THOMAS, J., for the court.

¶ 1. Willie Towner was found guilty of the sale of cocaine and sentenced to thirty years in the custody of the MDOC. Aggrieved he asserts the following on appeal:

I. THE TRIAL COURT FAILED TO SECURE A FAIR AND IMPARTIAL JURY WHICH CAUSED A WRONGFUL CONVICTION.

II. THE COURT ERRED IN ALLOWING IMPERMISSIBLE HEARSAY TESTIMONY OVER OBJECTIONS.

III. THE COURT ERRED IN NOT PERMITTING FULL CROSS EXAMINATION OF WITNESSES AND IMPROPER REDIRECT QUESTIONS WERE PERMITTED BY THE STATE.

IV. THE COURT ERRED IN GRANTING STATE'S REBUTTAL TESTIMONY.

V. THE CASE MUST BE REVERSED BECAUSE OF ERROR REGARDING THE PROPORTIONALITY RULE.

VI. THE VERDICT OF THE JURY IS AGAINST THE OVERWHELMING WEIGHT AND

SUFFICIENCY OF THE EVIDENCE.

We affirm in part, and reverse and remand in part.

FACTS

¶ 2. Willie Towner and Alfred Wilson were arrested for sale and possession of cocaine, a Schedule II controlled substance. The buy was conducted by Agent James Ragan, Jr. of the Mississippi Bureau of Narcotics in Scott County. A pre-buy meeting was held and Ragan was provided state funds with which to purchase the narcotics, he was searched to be sure that no impropriety existed, and an audio wire transmitter was then placed on his body so that the other agents close by could hear the activities taking place. Ragan was followed to Towner Road by the agents where he approached Towner and Wilson. Ragan provided Wilson with five hundred twenty-five dollars and Towner supplied the cocaine. Upon receiving the money, Towner told Ragan that he still owed him twenty-five dollars for the drugs. Ragan paid the money and left.

¶ 3. Ragan met with the other agents at a post buy meeting where the drugs were turned over and later tested at the crime lab by Brandi Goodman. The evidence tested was 9.43 grams of cocaine. The audio transmission of the sale was not admitted into evidence but only listened to by the other agents working the case.

¶ 4. At trial, Towner testified that he had no conversation at all with Agent Ragan and furthermore knew nothing of the transaction or facts leading up to such. Wilson testified that Towner was not involved and that it was only himself who was guilty of the sale of cocaine.

I. DID THE TRIAL COURT FAIL TO SECURE A FAIR AND IMPARTIAL JURY CAUSING A WRONGFUL CONVICTION?

¶ 5. Towner asserts that the trial court made erroneous determinations that the State's challenges were race-neutral and further states that the State should not be permitted to assert a Batson claim as it is reserved for non-State use. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

¶ 6. A defendant asserting a Batson challenge must show that (1) he is a member of a cognizable racial group; (2) that the prosecutor exercised peremptory challenges to excuse a venire person of the defendant's race; and (3) that there is an inference that the venire persons were excluded on account of their race. Collins v. State, 691 So.2d 918, 926 (Miss.1997). "In sum, these components constitute the prima facie showing of discrimination necessary to compel the State to come forward with a neutral explanation for challenging black jurors." Id. The burden then shifts to the State to come forward with a race-neutral explanation for challenging the jurors. Id. However, the State's explanation is not required to rise to the level of justification as required for a challenge for cause. Id. The pivotal question is whether the State was able to present a race-neutral explanation for each of the peremptory strikes. Determining whether a racially discriminatory motive lies under the State's articulated reasons is left to the sole discretion of the trial judge. Id. at 926. Under Mississippi law, the State's use of peremptory strikes against potential jurors who have family members who have been convicted of crimes is completely acceptable as a race-neutral reason and does not violate due process requirements. See Griffin v. State, 607 So.2d 1197, 1203 (Miss.1992)

; Benson v. State, 551 So.2d 188, 192 (Miss.1989). The trial court did not abuse its discretion in accepting the explanations tendered by the State. A trial court's factual findings relative to a prosecutor's use of peremptory challenges on minority persons are to be accorded great deference and such findings will not be reversed unless they appear clearly erroneous or against the overwhelming weight of the evidence. Benson, 551 So.2d at 188. Once either party has established a prima facie case of discrimination by the use of the challenges, the other party must supply reasons that are racially neutral. Lard v. State, 749 So.2d 276, 278(¶ 7) (Miss.Ct.App.1999).

¶ 7. The trial court conducted a very lengthy voir dire examination which made up ninety pages of the record. The trial court allowed, ad nauseam, review of the venire by both counsels and the determinations of the trial court are adjudged to lack any sign of error. This issue is without merit.

II. DID THE COURT ERR IN ALLOWING IMPERMISSIBLE HEARSAY TESTIMONY OVER OBJECTIONS?

¶ 8. Agent James Ragan and Agent Claire Gremillion both testified as to what they heard Wilson and Towner say during the drug transaction. Counsel for Towner objected numerous times citing the testimony as hearsay not under any exception under Mississippi Rule of Evidence 803. The trial judge determined that the testimony was not being offered to prove the truth of the matter asserted and therefore was not hearsay.

¶ 9. It is the customary practice, in the name of judicial economy, for an appellate court to affirm the trial court if the right result is reached even though for the wrong reason. Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993). We do not reverse where the trial court reaches the right result even when we conclude that this result was reached for the wrong reason. Booker v. State, 745 So.2d 850, 856(¶ 18)(Miss.Ct.App.1998), citing Carter v. State, 167 Miss. 331, 342, 145 So. 739, 741 (1933).

¶ 10. Agent Ragan and Gremillion both testified to what they heard Towner say during the drug transaction. This testimony is not considered hearsay but rather it is an admission by a party-opponent under M.R.E. 801(d)(2)(A). This rule classifies admissions as non-hearsay rather than an exception to the hearsay rule. The testimony regarding Wilson and what he said to Agent Ragan would be allowed as non-hearsay under M.R.E. 801(d)(2)(A), a statement by a co-conspirator of a party during the course of and in furtherance of the conspiracy.

¶ 11. The testimony is admissible at trial. This issue is without merit.

III. DID THE COURT ERR IN NOT PERMITTING FULL CROSS EXAMINATION OF WITNESSES AND WERE IMPROPER REDIRECT QUESTIONS PERMITTED BY THE STATE?

¶ 12. Towner asserts that the trial court erred in limiting his cross-examination of Agent Ragan and his re-direct of Wilson. The question elicited from Ragan on cross-examination, which was objected to and sustained, regarded what explanation could be given concerning why someone would not have been able to hear Towner's voice through the transmission of the body wire. Ragan was not offered as an acoustics expert and can only testify to personal perceptions. Towner also asserts error in the trial court's ruling allowing Ragan to testify that he saw Towner hand Wilson the drugs.

¶ 13. The admissibility and relevancy of evidence is within the discretion of the trial court and, absent an abuse of that discretion, the trial court's decision will not be disturbed on appeal. Reynolds v. State, 784 So.2d 929, 932(¶ 7) (Miss. 2001). "As long as the trial court remains within the confines of the Mississippi Rules of Evidence, its decision to admit or exclude evidence will be accorded a high degree of deference." Johnston v. State, 567 So.2d 237, 238 (Miss.1990). Additionally, "the admission or exclusion of evidence must result in prejudice or harm, if a cause is to be reversed on that account." Jackson v. State, 594 So.2d 20, 25 (Miss. 1992).

¶ 14. It is a well-established rule that re-direct examination of a witness is generally limited to matters which were brought out on cross-examination of that witness. West v. State, 463 So.2d 1048, 1055 (Miss.1985). The trial court has broad discretion when ruling on matters brought forth on re-direct. Id. This Court may not disturb the lower court's rulings regarding matters concerning redirect examination unless there was a "clear abuse of discretion." Lloyd v. State, 755 So.2d 12,15 (¶ 9) (Miss.Ct.App.1999).

¶ 15. The trial court ruled on these matters and we agree with those determinations. This issue is without merit.

IV. DID THE COURT ERR IN GRANTING STATE'S REBUTTAL TESTIMONY?

¶ 16. Towner asserts that the trial court erred in allowing Agent Ragan to testify once the State had rested its case-in-chief. Towner took the stand and testified that he did not sell anything to the agent and furthermore, that he had not even been present at the time or location the drugs were purchased. The trial judge noted the "obvious serious conflict in the testimony." Agent Ragan was called back to the stand as a State rebuttal witness. Ragan testified that Towner was present at the time of the drug purchase and that Towner handed the drugs to Wilson who sold it to Agent Ragan. Towner further claims that it was error to allow the testimony of Sheriff Richardson regarding his perception that Wilson was scared and that was the reason he did not testify. However, the trial judge sustained Towner's objection to this line of questioning and a limiting instruction was never requested.

¶ 17. The "purpose of rebuttal testimony is to...