Baskin v. State

991 So. 2d 179, 2008 WL 4139399
Court of Appeals of Mississippi·Decided September 9, 2008·No. 2007-KA-01387-COA·Published·Cited by 6 cases

Opinion

991 So.2d 179 (2008)

Jerome BASKIN a/k/a Lil Red Coot, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2007-KA-01387-COA.

Court of Appeals of Mississippi.

September 9, 2008.

*180 W. Daniel Hinchcliff, Leslie S. Lee, William C. Stennett, attorneys for appellant.

Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.

Before KING, C.J., IRVING and CHANDLER, JJ.

CHANDLER, J., for the Court.

¶ 1. Jerome Baskin was convicted in the Circuit Court of Clay County of one count of sale of cocaine, for which he was sentenced to serve thirty years in the custody of the Mississippi Department of Corrections as a subsequent offender. On a second count of sale of cocaine, the jury could not return a verdict, and the circuit court granted a mistrial. Baskin now appeals his conviction and asserts four points of error:

I. The circuit court committed plain error by allowing the prosecutor to define reasonable doubt.
II. The circuit court committed plain error by failing to declare a mistrial when prospective jurors were brought into the courtroom while Baskin was in leg irons.
III. Baskin's right to a fair trial was prejudiced by the multiple incidents of prosecutorial misconduct.
IV. Reversal is warranted because of cumulative error.

¶ 2. Finding Baskin's allegations of error to be procedurally barred or without merit, we affirm his conviction and sentence.

FACTS

¶ 3. On June 18, 2004, a confidential informant, Bobby Gaston, met with Agent Treddis Anderson and Agent Andrew Cotton of the Mississippi Bureau of Narcotics to prepare for a drug purchase. The agents searched Gaston and his vehicle for drugs, and they fitted him with a microphone and a camera. That same afternoon, the agents gave Gaston $20 for the buy and sent him to Tom Bayne Street in West Point, Mississippi — an area known for its drug activity.

¶ 4. Agents Anderson and Cotton followed behind Gaston, and they monitored the situation. Gaston was initially approached by an unknown male, and Gaston informed him that he wanted to buy a "$20 stone." Baskin then approached the two men and informed Gaston that "he's got this." The unknown man walked away, and Gaston purchased a 0.22 gram rock of cocaine from Baskin. Gaston put the rock in a bag given to him by the agents, and he returned it to them. Later that same afternoon, Gaston made another buy from Baskin. The second time he bought a 0.23 gram rock of cocaine, which he also turned over to the agents.

*181 ¶ 5. Baskin was arrested and indicted for two counts of selling cocaine. At trial, Gaston testified that Baskin was the person who sold him the $20 rock of cocaine. Gaston said he had known Baskin for a few years, and he knew him as "Coot." Gaston also confirmed that he returned to the area and made a second purchase from Baskin. Additionally, the State presented the videotape of the transaction that was made by the video camera that Gaston wore that day. On the videotape, Gaston identified Baskin, and he explained what was happening as the tape played, specifically, Baskin reaching into a bag of drugs and selling Gaston a $20 rock of cocaine.

¶ 6. The State also called Agent Anderson to testify, and Brandy Goodman, of the Mississippi Crime Laboratory, also testified that the substance bought from Baskin was cocaine. Baskin testified in his own defense. He admitted that the man on the videotape looked like him, but he denied selling drugs to Gaston.

¶ 7. The jury convicted Baskin of the first count of sale of cocaine, and the circuit court sentenced him as a subsequent offender to thirty years in the custody of the Mississippi Department of Corrections, with five years of post-release supervision. On the second count of sale of cocaine, the jury was unable to return a verdict, and the circuit court declared a mistrial.

ANALYSIS OF THE ISSUES

I. Whether the circuit court committed plain error in allowing the prosecutor to define reasonable doubt.

¶ 8. To begin, Baskin argues that the prosecutor impermissibly attempted to define reasonable doubt during the State's closing argument in violation of Baskin's substantive rights. Baskin admits that the defense did not make a contemporaneous objection regarding this issue, and it was not addressed by the circuit court. Nevertheless, Baskin urges us to review this issue under the plain-error doctrine and to reverse his conviction.

¶ 9. Rule 103(d) of the Mississippi Rules of Evidence allows a court to take notice of any plain error affecting a substantial right even though it was not brought to the court's attention. In addressing the issue of plain error, the supreme court has said the following:

If no contemporaneous objection is made at trial, a party must rely on the plain error rule to raise the assignment of error on appeal. Foster v. State, 639 So.2d 1263, 1289 (Miss.1994) (citing Gray v. State, 487 So.2d 1304, 1312 (Miss.1986)). "The plain error doctrine requires that there be an error and that the error must have resulted in a manifest miscarriage of justice." Williams v. State, 794 So.2d 181, 187 (Miss.2001) (citing Gray v. State, 549 So.2d 1316, 1321 (Miss.1989)). The plain error rule will only be applied when a defendant's substantive or fundamental rights are affected. Grubb v. State, 584 So.2d 786, 789 (Miss.1991).

Flora v. State, 925 So.2d 797, 811(¶ 42) (Miss.2006).

¶ 10. The passage from the State's closing argument with which Baskin now takes issue reads as follows:

Ladies and gentlemen, in the unlikely event, in this day, that you went to bed at night and you woke up the next morning and snow was all over the ground outside the house, you might conclude any one of a number of things. You might conclude[ ] that a bunch of elves from the North Pole left over from Christmas flew over in a helicopter and dumped snow in your front yard.
You might conclude that they that they [sic] came down, somebody, with a snowmaking *182 machine and made a bunch of snow and blew it out there in the front yard for you. Or you might conclude that while you were sleeping, it snowed. You would probably conclude, ladies and gentlemen, that while you were sleeping it snowed, because that's the reasonable thing to do. Ladies and gentlemen, that's what this reasonable doubt thing is all about.
When Mr. Stennett gets up here and starts talking about reasonable doubt, that's what you're talking about. You don't have to believe those other two things, ladies and gentlemen, because they're too incredible to believe. It doesn't make sense. It's not reasonable.

The prosecutor's explanation came in rebuttal after the defense argued during its closing argument that the State had not proved its case beyond a reasonable doubt. It also followed the prosecutor's previous argument in which he stated the following:

Once again, ladies and gentlemen, what is the reasonable inference about what's going on out there? Because it's a seamless whole, ladies and gentlemen. Bobby Gaston has told you what was going on out there. Ladies and gentlemen, that's what this proof of beyond a reasonable doubt is all about. That's what we mean. It's not proof beyond any doubt. It's not proof beyond all doubt. It

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