White v. State, 97-KA-01239-SCT.

• Decision Date: 24 June 1999
• Docket Number: No. 97-KA-01239-SCT.,97-KA-01239-SCT.
• Citation: 742 So.2d 1126
• Parties: Earnest E. WHITE a/k/a Earnest Edward White v. STATE of Mississippi.
• Court: Mississippi Supreme Court

742 So.2d 1126

Earnest E. WHITE a/k/a Earnest Edward White v. STATE of Mississippi.

No. 97-KA-01239-SCT.

Supreme Court of Mississippi.

June 24, 1999.

Charles E. Miller, McComb, Attorney for Appellant.

Office of the Attorney General by Jolene M. Lowry, Attorney for Appellee.

EN BANC.

WALLER, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Earnest E. White was indicted for unlawful sale of cocaine within 1,500 feet of a church, in violation of Miss.Code Ann. §§ 41-29-139 and -142 (1993) for his sale of $40 worth of crack cocaine to a confidential informant. The jury returned a verdict of guilty of the sale of cocaine. He waived a jury trial on the enhancement provision. After hearing testimony, the Honorable Lamar Pickard found the sale occurred within 1,500 feet of a church and imposed the maximum sentence of sixty years in the custody of the Mississippi Department of Corrections. White timely appealed, presenting five assignments of error:¹

I. THE EVIDENCE IS INSUFFICIENT TO SUPPORT A CONVICTION PURSUANT TO THE INDICTMENT AND RELEVANT LAW. THE LOWER COURT ERRED IN NOT GRANTING A JUDGMENT NOTWITHSTANDING THE VERDICT PURSUANT TO M.R.C.P. 50(B).

II. THE LOWER COURT ERRED IN NOT GRANTING A NEW TRIAL BASED ON JURY MISCONDUCT AND FAILURE TO RELEASE THE JURY AT A REASONABLE TIME.

III. THE LOWER COURT ERRED BY ALLOWING THE AUDIO TAPE AND ILLEGAL SUBSTANCE INTO EVIDENCE.

IV. THE TRIAL COURT ERRED IN ITS RULING THAT AN OPINION AS TO THE TRUTH AND VERACITY OF THE CONFIDENTIAL INFORMANT IS NOT ADMISSIBLE.

V. THE LOWER COURT ACTED IMPROPERLY BY SENTENCING APPELLANT TO 60 YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.

STATEMENT OF THE FACTS

¶ 2. On December 21, 1996, around 6:30 p.m., Levon Turner ("Turner") purchased $40 worth of crack cocaine from Earnest White ("White") in Hazlehurst, Mississippi. Turner was a confidential informant working with law enforcement officers Ron Crew ("Crew") and John Whitaker ("Whitaker"). Crew and Whitaker monitored the transaction from a remote location by way of an audio transmitter worn by Turner.

¶ 3. Turner waved White over as he drove past and got in the car with White. Crew and Whitaker left their hidden location behind a church and passed the vehicle with Turner and White inside. Both officers testified, despite the darkness, they were able to identify both Turner and White as being inside the vehicle. They also stated they heard the transaction take place over the receiver in their car. Crew and Whitaker picked up Turner immediately after the buy. A search of Turner revealed crack cocaine.² Leah Heath, an analyst with the Mississippi Crime Lab, testified the substance found on Turner was cocaine.

DISCUSSION OF LAW

I. THE EVIDENCE IS INSUFFICIENT TO SUPPORT A CONVICTION PURSUANT TO THE INDICTMENT AND RELEVANT LAW. THE LOWER COURT ERRED IN NOT GRANTING A JUDGMENT NOTWITHSTANDING THE VERDICT PURSUANT TO M.R.C.P. 50(B).

¶ 4. A motion for a judgment notwithstanding the verdict challenges the sufficiency of the evidence supporting the jury's verdict of guilty. McClain v. State, 625 So.2d 774, 778 (Miss.1993). On review, this Court views the evidence in a light most favorable to the State and resolves all favorable inferences in favor of the prosecution. With respect to an element of the crime charged, only where the evidence is such that reasonable and fairminded jurors could return only a verdict of not guilty are we authorized to reverse. Jones v. State, 669 So.2d 1383, 1388 (Miss. 1995) (citing McClain, 625 So.2d at 778).

¶ 5. Under this standard, there is substantial evidence from which reasonable and fairminded jurors could have found White guilty of the sale of cocaine:

* Crew and Whitaker testified Turner did not have any drugs on his person before the transaction with White occurred. The officers were able to identify Turner and White, whom they had seen in photographs, in White's vehicle as it drove past them. The buy was monitored via an audio transmitter worn by Turner. A substance, which subsequently testified positive as cocaine, was found on Turner immediately after the buy. Both officers identified White as the person they observed in the vehicle with Turner.

* Turner testified the person who sold him cocaine was White. Turner had seen and met White on previous occasions. He stated Danny White, White's cousin, was not the person who sold him cocaine on December 21, 1996.

¶ 6. White also argues the verdict is against the overwhelming weight of the evidence. In his brief, White points to numerous facts requiring reversal. At trial, White argued it would have been impossible for Crew and Whitaker to identify White as the two cars passed on the street. Additionally, he presented several alibi witnesses who stated White was with them when the crime occurred. Also placed before the jury was the fact that Crew did not include in his report the fact that he left his surveillance position. Crew also did not record that White was the person he saw in the car with Turner. Presumably, White is asking this Court to overturn his conviction because the jury chose to believe the State's witnesses rather than those presented on his behalf. ¶ 7. It is the sole province of the jury to resolve any conflicts arising from the testimony presented at trial. Groseclose v. State, 440 So.2d 297, 300 (Miss. 1983). White is not entitled to a new trial unless to affirm the verdict of guilty would be to "sanction an unconscionable injustice." Herring v. State, 691 So.2d 948, 957 (Miss.1997); Benson v. State, 551 So.2d 188, 193 (Miss.1989) (citing McFee v. State, 511 So.2d 130, 133-34 (Miss.1987)). The State and White were allowed to present their theories of the case to the jury. All of White's allegations go to the weight and credibility of the evidence. It is evident the jury resolved any conflicts in the evidence in favor of the State.

¶ 8. Finally, White argues Turner's testimony, as the sole eyewitness, was so unreliable as to require reversal of his conviction. Turner admitted he was a cocaine user and had volunteered to be a confidential informant. It was shown Turner had been convicted of food stamp fraud. In fact, White was permitted to cross-examine Turner concerning a variety of unproven allegations,³ and he was allowed to present additional witnesses who testified Turner was untrustworthy.

¶ 9. White cites Pipkins v. State, 592 So.2d 947 (Miss.1991), as support for his proposition that the unreliability of Turner's testimony mandates that his conviction be overturned. However, Pipkins is distinguishable from the case at bar. There, the Court was confronted with a search warrant which was based on a confidential informant's statements to police. The Court reversed Pipkins's conviction because the "reliable information" contained in the warrant had never been relied upon before, thus probable cause did not exist. Id. at 951. Without probable cause the evidence discovered as a result of the execution of the warrant was inadmissible. Id.

¶ 10. Once again, the evidence attacking Turner's credibility and trustworthiness was placed before jury. Despite Turner's shortcomings, the jury weighed the evidence and found Turner's testimony, coupled with that of the officer, outweighed the evidence presented by White. This assignment is without merit.

II. THE LOWER COURT ERRED IN NOT GRANTING A NEW TRIAL BASED ON JURY MISCONDUCT AND FAILURE TO RELEASE THE JURY AT A REASONABLE TIME.

¶ 11. There are actually two separate issues raised under issue II. The first concerns comments made by the jurors before they retired to deliberate. The second amounts to an argument the trial judge abused his discretion by keeping the jury late. We examine the latter first.

¶ 12. The record indicates the jurors retired at 9:10 p.m. and returned with their verdict at 9:30 p.m. White also alleges the jury was "fed late." In essence, he argues all of the above resulted in a guilty verdict only because the jury was tired and ready to go home.

¶ 13. Trial judges ordinarily have broad discretion in deciding when to begin and stop trials on any given day. Hooker v. State, 716 So.2d 1104, 1113 (Miss.1998) (quoting Dye v. State, 498 So.2d 343, 344 (Miss.1986)). As there is no bright line rule as to when a trial judge should grant a continuance or recess, the peculiar facts of each case are the proper focal point of an analysis. Id.

¶ 14. What White fails to mention is that the trial did not begin until at least 1:00 p.m. There is no indication that either party or the jurors requested a recess or a continuance. Additionally, the record reveals the jurors were served dinner at some point. Under the circumstances, there was no abuse of discretion by the trial judge in continuing with the trial.

¶ 15. The second part of the issue involves White's allegation the jury engaged in premature deliberations. Alternate juror Ruby Felton⁴ executed a sworn affidavit which states in relevant part:

2. ... heard male juror said during the break that the State didn't have enough evidence.

3. Johnny Roberson said during the last break that Earnest White was not guilty.

4. The [illegible] age white-head woman said didn't have enough evidence.

5. All the jurors were saying they were tired, they were ready to go home and it was after 9:00 p.m., we didn't get anything to eat until late.

In support of his argument, Whites cites Holland v. State, 587 So.2d 848, 872-74 (Miss.1991).

¶ 16. The Holland jury returned a verdict of guilty of capital murder. Id. at 872. After conclusion of the guilt phase, but before the beginning of the sentencing phase, the trial judge excused the jury while he and the attorneys discussed some preliminary matters. Id. While the judge attorneys were engaged in discussion, the jury sent a note saying, "We the jury, sentence Gerald James Holland to death." Id. The trial judge issued a corrective instruction and the sentencing phase commenced. Id. at 873. The jury then deliberated for over...