Turner v. State, 89-KA-0841

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: ROBERTSON; ROY NOBLE LEE
• Citation: 573 So.2d 1335
• Parties: Edward TURNER, Jr. v. STATE of Mississippi.
• Docket Number: No. 89-KA-0841,89-KA-0841
• Decision Date: 12 December 1990

Page 1335

573 So.2d 1335 Edward TURNER, Jr.
v.
STATE of Mississippi. No. 89-KA-0841. Supreme Court of Mississippi. Dec. 12, 1990.

Page 1336

Brehm T. Bell, Joe Clay Hamilton, David H. Linder, Hamilton & Linder, Meridian, for appellant.

Mike C. Moore, Atty. Gen., Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and ANDERSON, JJ.

ROBERTSON, Justice, for the Court:

I.

Today's appeal arises from a sale of cocaine and the accused claims that his conviction was impermissibly tainted by two evidentiary rulings at trial. We have carefully reviewed the record and in particular the points charged as error and find that the first was not error at all but that the second was erroneous, only harmlessly so.

We affirm.

II.

Edward Turner, Jr. was born March 13, 1960, in Colorado, and grew up in Meridian, Mississippi. His father abandoned him at an early age and moved to California. Somewhat later Edward and his mother tried California for a year but came back to Meridian. As an eleven-year-old, Turner was doing fine in school but was experiencing problems and participated in a period of a regimen of counseling. He described his father as brutal. Reports in his record at age eleven describe Turner as "hostile", "aggressive", "emotionally tense", but also "a bright child, who reads very excellently" and who "appears to have the makings of an excellent leader in the years to come". After graduating from high school, Turner remained in the Meridian area. By late 1987, all promise had faded as Turner, by his own admission, had a serious drug problem marked by regular use of cocaine.

On May 18, 1988, Lawrence Vaughan served as an undercover agent for the Mississippi Bureau of Narcotics and was covertly working in Lauderdale County. The Bureau had information that drug trafficking was occurring at an establishment known as "Cat's Den" at 20th and 22nd Streets in Meridian and also known "Brazeale's Grocery and Cafe." On the afternoon of May 18, 1988, a little after 1:00 o'clock, Agent Vaughan and his confidential informant, Anthony Lewayne Cole, then age 21, went to the "Cat's Den." They pulled up to the building and observed another car parked there--a yellow Z-28 Camaro with the vanity tag "ET2."

Page 1337

The car was registered to Edward Turner, Jr.

Agent Vaughan had no knowledge of the identity of any particular individual there, but Anthony Cole, the CI, knew Turner. As Vaughan and Cole got out of their car, a man emerged from the Camaro and came toward their car. Cole approached him and asked if he was "holding," that is, if he had any drugs in his possession. The man answered that he had some "rocks," meaning cocaine. Vaughan got into the act at this point and

I walked up to him and questioned him about it as far as the price of them and ... I believe it was a $100, Sir.

Vaughan then purchased five "rocks" from the man, paying $100. Later in court Vaughan identified his seller as Edward Turner. The fruits of the buy were then sent off to the Crime Lab to be analyzed and were found to contain cocaine.

Pursuant to Mississippi Bureau of Narcotics (MBN) custom and practice, Turner was not arrested at the time nor advised that he was a suspect. Instead, Turner was allowed to go on about his business until August 1, 1988, when the Lauderdale County grand jury returned an indictment charging Turner with the sale of cocaine on May 18, 1988. See Miss.Code Ann. Secs. 41-29-115(A)(a)(4) and -139(a)(1) (Supp.1988). The case was called for trial on February 6, 1989, in the Circuit Court of Lauderdale County, at the conclusion of which the jury found Turner guilty as charged. Turner moved for a judgment of acquittal notwithstanding the verdict, or, in the alternative, for a new trial on plethora of grounds, and, on April 11, 1989, the Circuit Court granted the motion for a new trial, set aside the judgment of conviction, and restored the case to the active docket of the court.

The case was again called for trial on May 15, 1989. The principal issue at trial was the identification of the person Agent Vaughan made the buy from on May 18, 1988. Turner took the witness stand and admitted his drug problem but denied the sale. The jury wasn't buying but instead convicted Turner and on June 7, 1989, the Circuit Court sentenced Turner to a term of sixteen (16) years in the custody of the Mississippi Department of Corrections plus payment of a fine of $5,000 plus statutory fees and court costs. Thereafter the court denied Turner's post-trial motion, and this appeal has followed.

III.

Turner makes no challenge to the sufficiency of the evidence to support the judgment that he stand convicted of the sale of cocaine, nor could he credibly. Agent Vaughan testified fully and credibly that he personally witnessed Turner committing each element of the offense of sale of cocaine. Given our familiar and limited scope of review of such matters, the Circuit Court correctly denied Turner's post-trial motion for judgment of acquittal notwithstanding the verdict. See, e.g., Doby v. State, 557 So.2d 533, 535-36 (Miss.1990); Temple v. State, 498 So.2d 379, 381 (Miss.1986); Gray v. State, 487 So.2d 1304, 1311 (Miss.1986); Clemons v. State, 482 So.2d 1102, 1105-06 (Miss.1985); Johnson v. State, 461 So.2d 1288, 1293-94 (Miss.1984).

Turner does, however, point to a pair of somewhat related evidentiary rulings at trial and urges that each was error and that together or singly they stacked the deck against him on the critical issue of identification. Turner made no serious effort to defend the charge on any grounds other than that he was not the individual who sold the cocaine Agent Vaughan bought on May 18, 1988. Turner said that as many as five people had borrowed and driven his car at various times during May of 1988, and this explains his vehicle being at Cat's Den. He wholly denied that he was present on the scene or...