White v. State, 97-KA-00311-SCT.

• Decision Date: 10 September 1998
• Docket Number: No. 97-KA-00311-SCT.,97-KA-00311-SCT.
• Parties: Calvin WHITE, a/k/a "Tweety Bird" v. STATE of Mississippi.
• Court: Mississippi Supreme Court

722 So.2d 1242

Calvin WHITE, a/k/a "Tweety Bird" v. STATE of Mississippi.

No. 97-KA-00311-SCT.

Supreme Court of Mississippi.

September 10, 1998.

Callestyne Hall Crawford, for Appellant.

Michael C. Moore, Attorney General, Billy L. Gore, Special Asst. Atty. Gen., for Appellee.

Before SULLIVAN, P.J., and McRAE and SMITH, JJ.

SMITH, Justice, for the Court:

¶ 1. The appellant, Calvin White a/k/a "Tweety Bird," was indicted by the Holmes County Grand Jury on three counts of sale of cocaine pursuant to Miss.Code Ann. § 41-29-139(a)(1)(1994). Subsequently, capias was served on White. Later, he was arraigned, at which time he entered a not guilty plea.

¶ 2. On the day of the trial, White filed a Motion in Limine and Motion to Suppress certain evidence. The trial court denied the motions. A jury of his peers found the appellant not guilty of Count I, but he was found guilty of Count II and Count III. Circuit Court Judge Jannie M. Lewis sentenced White to a term of ten (10) years on each count in the custody of the Mississippi Department of Corrections to run concurrently. White's Motion for a New Trial or alternatively a j.n.o.v. was denied by the Circuit Court.

¶ 3. Four issues are raised on appeal to this Court:

I. WHETHER THE CIRCUIT COURT ERRED IN THE DENIAL OF THE DEFENDANT'S MOTION TO SUPPRESS STATE'S EXHIBIT 2 AND 4—COCAINE—ON THE GROUNDS THAT THERE WERE BREAKS IN THE CHAIN OF CUSTODY?

II. WHETHER THE CIRCUIT COURT ERRED IN THE DENIAL OF THE DEFENDANT'S MOTION TO EXCLUDE STATE'S EXHIBIT 3—VIDEOTAPE?

III. WHETHER THE CIRCUIT COURT ERRED IN DENYING APPELLANT'S MOTION FOR A JUDGEMENT NOTWITHSTANDING THE VERDICT OR A NEW TRIAL ON THE GROUNDS THAT THE JURY'S VERDICT WAS AGAINST THE OVERWHELMING SUFFICIENCY AND WEIGHT OF THE EVIDENCE?

IV. WHETHER THE CIRCUIT COURT ERRED IN NOT GRANTING, SUA SPONTE, A CAUTIONARY INSTRUCTION REGARDING THE TESTIMONY OF THE CONFIDENTIAL INFORMANT?

STATEMENT OF THE FACTS

¶ 4. The appellant, Calvin White, sold .3 gram of crack cocaine to Ross Kyzer, a confidential informant. Kyzer met with Narcotics Task Force Agents, Al Jobe and Andy Ledbetter and was given $100 in state funds to purchase crack cocaine from a willing seller in Pickens, Mississippi. According to Mr. Jobe and the informant, the pre-buy meeting took place at 12:00 p.m. Then the informant left for Pickens at 12:33 p.m. At 12:52 p.m. a $40 sale was made and eight minutes later another sale was made. Both transactions were videotaped.

¶ 5. Based on the report, the appellant, seen on the videotape, was wearing blue jeans, blue shirt, tennis shoes, and red and blue cap at the time of the first sell. Eight minutes later, at the time of the second sell, he was seen on videotape wearing black pants, black cap, black shoes, and a white shirt. The appellant's counsel argued in trial that the clothing differences should make one doubt that both sales were conducted by the same man. However, Alvin Jobe, one of the narcotics officer, fully explained the differences in clothing in such a short time frame:

We've had it happen in the past when we've conducted an investigation like this that the person may realize or believe that they've sold to an undercover, and they go and change clothes for that purpose. We've had it happen on several occasions and in less than eight minutes like it was in this case.

¶ 6. At the close of the State's case-in-chief, White's motion for a directed verdict was overruled. The State produced James Lee as a rebuttal witness who, much like Kyzer, the informant, identified the individual in the videotape as Calvin White.

¶ 7. The jury returned a verdict of "guilty" of the sales that took place on February 10, 1996. The jury, however, acquitted White of the sale taking place on February 8. Unlike the transaction that took place on February 10, the February 8 transaction was not videotaped due to a mechanical malfunction.

¶ 8. White's motion for a new trial, or in the alternative, for j.n.o.v. was denied.

LEGAL ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED IN THE DENIAL OF THE DEFENDANT'S MOTION TO SUPPRESS STATE'S EXHIBIT 2 AND 4—COCAINE—ON THE GROUNDS THAT THERE WERE BREAKS IN THE CHAIN OF CUSTODY?

¶ 9. The appellant argues that the court improperly denied the Motion to Suppress the evidence of cocaine. White contends that the evidence fails to show how the cocaine came into the possession of Marvin Lawrence who delivered it to Bernice Livingston at the crime laboratory in Jackson or how the evidence got from Livingtson to Jacqueline Gardner who performed the analysis and determined that the substance contained cocaine. Appellant relies on Griffin v. State, 557 So.2d 542, 552 (Miss.1990), where this Court held that contemporaneous objection is not needed where appellant has been denied a fundamental fair trial. White claims that the evidence indicates a substantial likelihood of tampering, contamination, or substitution of evidence that has resulted in a violation of appellant's right to fair trial.

¶ 10. The trial record reflects that the substances purchased from White by Kyzer were given to Agent Jobe and placed inside "... the evidence vault at the task force office." The drugs were subsequently given to Chief Lawrence who delivered them to the crime laboratory in Jackson on February 14, 1996, at 2:50 p.m. Jacqueline Gardner performed the analysis on the two exhibits purchased on February 10 and determined they contained cocaine.

¶ 11. White further contends that the chain of custody from Bernice Livingston to Monica Artis, the drug analyst, was flawed. Such a contention has no merit since Artis performed the analysis on the cocaine sold on February 8, not the cocaine sold on February 10. White was acquitted of the charge contained in Count I, alleging a sale of cocaine on February 8. White's chain of custody argument is flawed for this reason if for no other.

¶ 12. This Court has held that the test of whether there has been a proper showing of the chain of possession of evidence is whether there is any indication or reasonable inference of probable tampering with the evidence or substitution of the evidence. Gibson v. State, 503 So.2d 230, 234 (Miss.1987); Barnette v. State, 478 So.2d 800, 804 (Miss.1985); Lambert v. State, 462 So.2d 308, 312 (Miss. 1984); Morris v. State, 436 So.2d 1381, 1388 (Miss.1983); Harrison v. State, 307 So.2d 557, 561 (Miss.1975); Nix v. State, 276 So.2d 652, 653 (Miss.1973); Grady v. State, 274 So.2d 141, 143 (Miss.1973).

¶ 13. The State produced the witnesses to sufficiently satisfy the chain of custody. However, "the burden to produce evidence of a broken chain of custody (i.e., tampering) is on the defendant." Hemphill v. State, 566 So.2d 207, 208 (Miss.1990) (citing Nix, 276 So.2d at 653

) (emphasis added). Additionally, "[m]atters regarding the chain of custody of evidence are largely left to the discretion of the trial judge, and `unless this judicial discretion has been so abused as to be prejudicial to the defendant, this Court will not reverse the ruling of the trial court.'" Doby v. State, 532 So.2d 584, 588 (Miss.1988) (quoting Morris, 436 So.2d at 1388).

¶ 14. In the case sub judice there is no suggestion of tampering or substitution of evidence. The evidence was under lock and key from the time it was given to Agent Jobe on February 10 until it was surrendered to Chief Lawrence who turned it over to the crime laboratory in Jackson on February 14. The defendant has failed to produce evidence of a broken chain of custody. Moreover, no abuse of judicial discretion has been demonstrated here. This claim is devoid of merit.

II. WHETHER THE CIRCUIT COURT ERRED IN THE DENIAL OF THE DEFENDANT'S MOTION TO EXCLUDE STATE'S EXHIBIT 3—VIDEOTAPE?

¶ 15. White contends the lower court committed reversible error by allowing the videotape in as evidence by denying the appellant's motion in limine. He argues that the videotapes are not clearly defined, the videotape is in very poor condition, there is no audio, and the tape fails to show if the person seen therein is offering drugs. The appellant relies on Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), which holds that an impermissively suggestive identification procedure undermines the reliability of eye witness identification and presents danger of misidentification as to violate due process. Foster can be factually distinguished from the case at bar as it concerns the reliability of eyewitnesses in viewing a police line up; in the case sub judice the facts involve a videotape.

¶ 16. Motions in limine "... should be granted only when the trial court finds two factors are present: the evidence in question will be inadmissable at trial under the rules of evidence and that mere offer, reference, or statements made during trial concerning the evidence will tend to prejudice the jury." Hopkins v. State, 639 So.2d 1247, 1254 (Miss.1993). The case at bar does not exist in either posture. Moreover, "[i]t is elementary that photographs, moving or still, recordings and admissions by defendants are admissible." Crenshaw v. State, 513 So.2d 898, 899 (Miss.1987).

III. WHETHER THE CIRCUIT COURT ERRED IN DENYING APPELLANT'S MOTION FOR A JUDGEMENT NOTWITHSTANDING THE VERDICT OR A NEW TRIAL ON THE GROUNDS THAT THE JURY'S VERDICT WAS AGAINST THE OVERWHELMING SUFFICIENCY AND WEIGHT OF THE EVIDENCE?

¶ 17. Despite the introduction of a videotape of the drug transaction and the identification of the appellant by Kyzer, Agent Jobe, and James Lee as the individual who approached the window of Kyzer's pickup truck, White assails both the sufficiency and the weight of the evidence.

A. Sufficiency of the Evidence

¶ 18. The State's proof consisted of positive in-court identification made by Kyzer of White as the seller of cocaine on two separate occasions on February 10. The proof further consisted of a videotape of the transaction which was viewed by the jury. Kyzer, Agent Jobe, and James Lee, ...