Berry v. State

859 So. 2d 399, 2003 WL 22290166
CourtCourt of Appeals of Mississippi
DecidedOctober 7, 2003
Docket2002-KA-00957-COA
StatusPublished
Cited by7 cases

This text of 859 So. 2d 399 (Berry v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berry v. State, 859 So. 2d 399, 2003 WL 22290166 (Mich. Ct. App. 2003).

Opinion

859 So.2d 399 (2003)

Reno O'Neal BERRY, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2002-KA-00957-COA.

Court of Appeals of Mississippi.

October 7, 2003.

*402 Stephen P. Livingston, New Albany, attorney for appellant.

Office of the Attorney General by: Billy L. Gore, attorney for appellee.

Before KING, P.J., BRIDGES and LEE, JJ.

BRIDGES, J., for the Court.

¶ 1. Reno O'Neal Berry was indicted on December 12, 2001, by the grand jury of Union County, Mississippi, and charged with four counts of selling a controlled substance, crack cocaine. However, Berry only went to trial on Count II. Following a jury trial, Berry was convicted of the sale of cocaine charged in Count II in violation of Mississippi Code Annotated section 41-29-139. He was then sentenced to twenty years in the custody of the Mississippi Department of Corrections with eight years suspended and twelve years to serve. It is that conviction that Berry now appeals.

STATEMENT OF THE ISSUES

I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT BERRY'S MOTION FOR A DIRECTED VERDICT AND/OR J.N.O.V.

II. WHETHER THE TRIAL COURT ERRED IN DENYING JURY INSTRUCTIONS D-4, D-9, AND D-10.

III. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GIVE JURY INSTRUCTION D-13.

IV. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL BASED ON PROSECUTORIAL MISCONDUCT.

V. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW DEFENSE COUNSEL TO CROSS-EXAMINE A CONFIDENTIAL INFORMANT'S PRIOR CONVICTION.

VI. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE'S WITNESS TO NARRATE A VIDEO.

FACTS

¶ 2. Reno Berry, a resident of Saltillo, Mississippi, sold 3.9 grams of cocaine to Reginald Williams, a confidential informant and the State's only eyewitness.

¶ 3. Reginald Williams testified that he purchased cocaine from Berry in the bathroom of Pinkie Pulliam's house on Sunset Road in Union County. Berry personally handed Williams the cocaine and Williams, in turn, handed Berry $300.

¶ 4. Tommy Smithey, a narcotics investigator with the New Albany Union County Drug Task Force, testified that on March 2, 2001, Williams, a confidential informant, made a drug buy at the home of Pulliam from a man later identified as Berry. Prior to the drug purchase, Williams and his vehicle were searched for drugs. Finding *403 none, Williams was then equipped with $300, a body transmitter and a video recording device, which ultimately recorded the transaction on videotape.

¶ 5. J.C. Smiley, a forensic drug analyst, testified that the substance sold to Williams constituted 3.93 grams of cocaine.

¶ 6. After the State finished its case-in-chief, Berry made a motion for a directed verdict which was overruled by the trial judge. Berry neither testified nor produced any witnesses to testify in his defense. The trial court also denied a peremptory instruction. Berry was later found guilty and sentenced by the court. Berry filed a motion for a JNOV which was denied by the trial court on June 18, 2002.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT BERRY'S MOTION FOR A DIRECTED VERDICT AND/OR J.N.O.V.

¶ 7. Our standard of review regarding motions for a directed verdict and also a JNOV is:

Sufficiency questions are raised in motions for directed verdict and also in JNOV motions. McClain v. State, 625 So.2d 774, 778 (Miss.1993). Where a defendant moves for a JNOV or a directed verdict, the trial court considers all of the credible evidence consistent with the defendant's guilt, giving the prosecution the benefit of all favorable inferences that may be reasonably drawn from this evidence. Id. This Court is authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence is such that reasonable and fair-minded jurors could not find the accused guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987.)

Holmes v. State, 798 So.2d 533, 538(¶ 18) (Miss.2001).

¶ 8. Motions for directed verdict and motions for JNOV are both for the purpose of challenging the legal sufficiency of the evidence. Noe v. State, 616 So.2d 298, 302 (Miss.1993); McClain, 625 So.2d at 778. See also Strong v. State, 600 So.2d 199, 201 (Miss.1992).

¶ 9. Our standard of review regarding the legal sufficiency of the evidence is as follows:

[W]e must, with respect to each element of the offense, consider all of the evidence—not just the evidence which supports the case for the prosecution—in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fairminded jurors could only find the accused not guilty.

Wetz, 503 So.2d at 808.

¶ 10. According to the above standard of review, this Court looks at the evidence in the light most favorable to the verdict. This was certainly not a difficult task. All of the evidence points to the fact that Berry committed the crime of selling cocaine. There is even a video showing Berry and his illegal actions. There is no merit to this issue.

II. WHETHER THE TRIAL COURT ERRED IN DENYING JURY INSTRUCTIONS D-4, D-9, AND D-10.

¶ 11. Berry asserts that it was reversible error by the trial court not to grant *404 jury instructions number D-4, D-9, and D-10 that concerned reasonable doubt or explained reasonable doubt.

¶ 12. "In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Johnson v. State, 823 So.2d 582, 584(¶ 4) (Miss. Ct.App.2002).

Jury Instruction D-4

¶ 13. The trial court refused to grant jury instruction D-4, which provided:

The testimony of a law enforcement officer should be considered by you just as any other evidence in the case. In evaluating his or her credibility you should use the same guidelines which you apply to the testimony of any witness. In no event should you give either greater or lesser credence o[sic] the testimony of any witness merely because he or she is a law enforcement officer.

¶ 14. As stated in Hansen v. State, "[o]ur criminal procedure has long perceived dangers in comments upon the evidence, and in that regard we have for years had a statute," Mississippi Code Annotated section 99-17-35, which reads in pertinent part:

The judge in any criminal cause, shall not sum up or comment on the testimony or charge the jury as to the weight of evidence....

Hansen v. State, 592 So.2d 114, 141 (Miss. 1991) (see also Washington v. State, 341 So.2d 663, 664 (Miss.1977)).

¶ 15. This instruction, which commented on the weight of the evidence, was properly refused by the trial judge.

Jury Instruction D-9

¶ 16. The trial court also refused to grant instruction D-9, which provided:

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Cite This Page — Counsel Stack

Bluebook (online)
859 So. 2d 399, 2003 WL 22290166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-state-missctapp-2003.