Walker v. State, No. 2001-KA-00387-COA.

• Decision Date: 14 May 2002
• Docket Number: No. 2001-KA-00387-COA.
• Citation: 823 So.2d 557
• Parties: Willie WALKER, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

823 So.2d 557

Willie WALKER, Appellant, v. STATE of Mississippi, Appellee.

No. 2001-KA-00387-COA.

Court of Appeals of Mississippi.

May 14, 2002.

Rehearing Denied July 30, 2002.

William L. Bambach, Columbus, attorney for appellant.

Office of the Attorney General by Charles W. Maris Jr., attorney for appellee.

Before McMILLIN, C.J., LEE, and BRANTLEY, JJ.

BRANTLEY, J., for the court.

¶ 1. In the Circuit Court of Monroe County, Willie Walker was convicted of the crime of sale of cocaine. Walker was denied his motion for judgment notwithstanding the verdict or in the alternative a new trial. Aggrieved, Walker appeals his conviction raising the following issues as error:

I. WHETHER WALKER WAS NOT ALLOWED TO TESTIFY OR ADVISED THAT HE HAD A RIGHT TO TESTIFY.

II. WHETHER THE VERDICT WAS THE RESULT OF PREJUDICE, BIAS, OR EMOTION CREATED BY IMPANELING A JURY COMPOSED OF PERSONS WHO WERE NOT HIS PEERS OR OF THE SAME RACE.

III. WHETHER THE ALLEGED BREAKS IN THE CHAIN OF CUSTODY RENDERED THE EVIDENCE INADMISSIBLE.

IV. WHETHER WALKER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

V. WHETHER THE ALLEGED CUMULATIVE ERROR AT TRIAL IN THIS CASE REQUIRES THAT THE CONVICTION BE REVERSED.

VI. WHETHER THE TRIAL COURT ERRED IN DENYING WALKER'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE A NEW TRIAL.

VII. WHETHER THE DEFENDANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 21, 1999, officers working with the North Mississippi Narcotics Unit planned and executed an undercover drug buy. At the pre-buy meeting, Officer Keith Vann was wired with a body transmitter and his car was equipped with a video recorder. After the pre-buy meeting, Officer Vann proceeded to the target area where he was approached by an individual. The officer asked the individual where he could obtain some dope. After a short discussion, the individual told him to return after driving around the block a couple of times. Upon Officer Vann's return, the individual approached the vehicle and sold him a substance, later determined to be cocaine, for forty dollars. Two other agents, Donna Franks and Ray Blaylock, performed surveillance of the activity from a distance. Although they were unable to see the actual transaction, they were able to monitor the audio portion of the sale from the body wire.

¶ 3. After the purchase, Officer Vann drove around the neighborhood for a short period of time before he returned to the office for the post-buy meeting. Officer Vann did not come into contact with anyone after the drug buy until Agent Franks approached his vehicle with a packet in which he placed the substance. Agent Franks sealed and marked the packet. On October 28, 2001, Agent Franks delivered the substance to the Tupelo Crime Lab where it was logged into the laboratory records and then placed into the vault until analyzed. The test results verified that the substance was cocaine. After the test was performed, the analyst sealed, initialed, and dated the packet and placed it into the vault for storage until it was picked up for court.

¶ 4. At trial, the video and audio tapes of the drug buy were presented. Officer Vann corroborated the video and identified Walker as the individual on the tape who approached the vehicle and sold him the cocaine. The director and analyst of the Tupelo Crime Lab verified her results that the tested substance purchased from Walker was cocaine. Walker rested without testifying or presenting any witnesses or evidence for his defense.

DISCUSSION

I. WHETHER WALKER WAS NOT ALLOWED TO TESTIFY OR ADVISED THAT HE HAD A RIGHT TO TESTIFY.

¶ 5. Walker claims that he was denied his right to testify and was not informed that he had a right to testify by his counsel or the court. We will address his claim as to the court below and his claim as to his counsel later in Walker's ineffective assistance of counsel assignment of error.

¶ 6. First, we address Walker's claim that he was denied his right to testify. Walker did not testify and we find nothing in the record that suggests he wanted to testify or that he was not allowed to do so by the court or his counsel. Walker also provides no facts other than his own assertions to support this contention. The Mississippi Supreme Court has stated in Mason v. State:

We have on many occasions held that we must decide each case by the facts shown in the record, not assertions in the brief, however sincere counsel may be in those assertions. Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them.

Mason v. State, 440 So.2d 318, 319 (Miss. 1983). Furthermore, the assertion fails on direct appeal for there is not one word in the present record that even mentions the point. The record reflects that at the conclusion of the prosecution's case, Walker rested without offering any evidence. Nothing suggests that he indicated of record a desire to testify, nor is there any course of proceedings in chambers wherein the court advised him of his right of allocution. See Jaco v. State, 574 So.2d 625, 634 (Miss.1990)

; Shelton v. State, 445 So.2d 844, 847 (Miss.1984); Culberson v. State, 412 So.2d 1184, 1186 (Miss.1982),

affirmed

456 So.2d 697 (Miss.1984). "As the point was not presented in any way, shape, form or fashion at trial, it is not available to [Walker] on [his] direct appeal." Jaco, 574 So.2d at 634.

¶ 7. As to Walker's second assertion that the court failed to inform him of his right to testify, he cites Culberson v. State, 412 So.2d 1184 (Miss.1982), for support. The supreme court in Culberson stated:

We suggest to the trial judges of the state that, in any case where a defendant does not testify, before the case is submitted to the jury, the defendant should be called before the court out of the presence of the jury, and advised of his right to testify. If the defendant states he does not wish to testify, he may not be forced to take the stand; however, if he states that he wants to testify he should be permitted to do so.

A record should be made of this so that no question about defendant's waiver of his right to testify should ever arise in the future.

Culberson, 412 So.2d at 1186-87. The Mississippi Supreme Court, in continuance of Culberson, stated in Shelton that trial courts are not required to follow Culberson in their proceedings because they were "merely suggest[ing]" that trial courts inquire whether defendants desire to testify. Shelton, 445 So.2d at 847. Therefore, although the preferred practice is for the trial court to inform the defendant on the record of the right to testify, no legitimate claim of reversible error can be predicated on the trial court's failure in this regard. This assignment of error is without merit.

II. WHETHER THE VERDICT WAS THE RESULT OF PREJUDICE, BIAS, OR EMOTION CREATED BY IMPANELING A JURY ALLEGEDLY COMPOSED OF PERSONS WHO WERE NOT HIS PEERS OR OF THE SAME RACE.

¶ 8. Walker argues that the jury was biased and prejudiced because it was "composed of persons who were not his peers or of the same race." Walker is an African American male and submits that the impaneled jury was entirely of the white race.

¶ 9. It is not the fact that a jury is all white or all black that violates Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986): rather, it is the racially discriminatory use of peremptory challenges to strike jurors. Govan v. State, 591 So.2d 428, 430 (Miss.1991). Additionally, Batson applies only to peremptory challenges and not to excuses for cause. Brown v. Blackwood, 697 So.2d 763, 772 (Miss.1997). The State's strikes were for cause, which expressed race-neutral reasons.

¶ 10. Moreover, Walker made no objection in the trial court, asking the State to articulate race-neutral reasons for their strikes, nor did he object to the final composition of the jury. Furthermore, the record is totally silent regarding the race of any of the jurors.

¶ 11. The Mississippi Supreme Court has ruled this question is not properly preserved for appellate review as the record does not disclose the race of the jurors. Hansen v. State, 592 So.2d 114, 127 (Miss.1991). Furthermore, having failed to raise this issue at trial, Walker may not raise it now on appeal. Smith v. State, 729 So.2d 1191, 1201(¶ 41) (Miss. 1998). Therefore, this assignment of error is procedurally barred from review.

III. WHETHER THE ALLEGED BREAKS IN THE CHAIN OF CUSTODY RENDERED THE EVIDENCE INADMISSIBLE.

¶ 12. Walker argues that the trial court erred in allowing the cocaine into evidence because "there [was] an inference of tampering or substitution of evidence" because "plenty of time" existed before Officer Vann turned the substance over to Agent Franks at the post-buy meeting and asserts that "plenty of time" also existed for Agent Franks to have tampered with or substituted the evidence while it was in her control until she delivered it to the crime lab. Furthermore, he argues that the substance could have been switched or substituted at the laboratory because the analyst, Ms. Ard, never stated that she only performed tests on one substance at a time.

¶ 13. The Mississippi Supreme Court has stated, "[t]here is a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to this Court." Clark v. State, 503 So.2d 277, 280 (Miss.1987). The appellant has the duty to make more than mere assertions and should set forth reasons for his arguments and cite authorities in their support. Id. If the party does not provide this support, this Court is under no duty to consider assignments of error when no authority is cited. Drennan v. State, 695 So.2d 581, 585-86 (Miss.1997). Walker has failed to make meaningful arguments or cite pertinent authority other than his mere assertions in addressing this claim. Therefore, we will not...