Byrd v. State

834 So. 2d 730, 2003 Miss. App. LEXIS 21, 2003 WL 69572
CourtCourt of Appeals of Mississippi
DecidedJanuary 7, 2003
DocketNo. 2001-KA-00814-COA
StatusPublished
Cited by1 cases

This text of 834 So. 2d 730 (Byrd 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
Byrd v. State, 834 So. 2d 730, 2003 Miss. App. LEXIS 21, 2003 WL 69572 (Mich. Ct. App. 2003).

Opinion

KING, P.J.,

for the court.

¶ 1. Robert E. Byrd was found guilty in the Circuit Court of Walthall County, Mississippi of the unlawful sale of cocaine. He was sentenced to a term of fifteen years in the custody of the Mississippi Department of Corrections, to serve the first eight years and the last seven years to be served on post-release supervision and ordered to pay a fine and other court costs. Aggrieved by his conviction, Byrd has appealed and raised the following issues:

I. Whether the trial court erred in allowing the identification of Byrd in the courtroom based on the pre-trial viewing of photographs of Byrd.
[732]*732II. Whether the verdict was against the weight and credibility of the evidence.

FACTS

¶ 2. On January 11, 2001, confidential informant Louis Pearley worked with Officer Arzetto Mark of the Walthall Tyler-town Narcotics Task Force to set up an “undercover buy” to purchase narcotics in the Walthall County area. Officers Chad McElveen and Brandon Bright participated by conducting surveillance of the “controlled buy.”

¶ 3. In preparation for the controlled buy, Pearley met with the officers at a pre-arranged location where he was searched. Officer McElveen put a body wire on Pearley and gave him forty dollars (money from Walthall Tylertown Task Force funds) to purchase the narcotics. Pearley used one of the law enforcement vehicles during the controlled buy. The officers placed a video camera and an audio transmitter in the vehicle. The officers conducted surveillance by listening to the audio transmitter when Pearley was no longer in sight.

¶ 4. Pearley testified that after he and the vehicle were searched, the officers followed him and:

[H]e drove down St. Paul Road and I seen [sic] Rabbit standing up under a[sic] oak tree, so I went down and made the loop and come [sic] in and parked, you know, where the video camera would catch him. He came up to me — -when I come [sic] up there I said “what’s up, you on,” and he said, “yeah, what you want.” I said “I want a forty,” that means forty dollars worth of crack cocaine. So he pulled out a little orange-looking pill bottle, unscrewed it, give [sic] me two rocks. I handed him forty dollars and I drove back to the pre-buy location, and at that time on the way back Agent Bright and them [sic] was [sic] behind me and they followed me all the way back to the pre-buy location.

¶ 5. When Pearley met with the officers at the pre-arranged location following the buy, he gave the substance to Officer McElveen who placed it in an evidence bag and gave it to Officer Bright. The substance was then sent to the Mississippi Crime Lab where it was later determined to contain cocaine.

¶ 6. On February 7, 2001, Byrd was indicted for the unlawful sale of cocaine. At a jury trial on April 12, 2001, Byrd denied having committed the crime and testified that he had been at his sister’s house on the afternoon of the alleged sale. Byrd was convicted of the unlawful sale of cocaine, and sentenced to a term of fifteen years in the custody of the Mississippi Department of Corrections, with the last seven years to be served on post-release supervision and ordered to pay a fine and other court costs.

ISSUES AND ANALYSIS

I.

Whether the trial court erred in allowing the identification of Byrd in the courtroom based on the pre-trial viewing of photographs of Byrd.

¶ 7. Byrd contends that the trial judge should not have allowed the in-court identification of him because of the improper pre-trial viewing of photographs. He maintains that Pearley viewed the photographs of him while they were “just laying” on the table during the trial and were not shown “in any sort of customary lineup” prior to trial.

¶ 8. This Court reviews a challenge to the admissibility of identification testimony by determining whether there is an [733]*733absence of credible evidence to support the finding. Jackson v. State, 807 So.2d 467(¶ 8) (Miss.Ct.App.2001).

¶ 9. A review of the transcript shows that Pearley identified Byrd in the following manner:

Q. Let me ask you this question. Did you know Mr. Byrd prior to this date?
A. Yes, sir.
Q. And for the record, do you see Mr. Byrd in the courtroom today?
A. Yes, sir.
Q. Would you identify him?
A. Right there by Mr. Jack Price.

¶ 10. There was no objection made at that time regarding the identification of Byrd. Pearley stated that he had seen Byrd prior to the incident; however, he did not know Byrd’s real name. Pearley indicated that he knew Byrd by the nickname of “Rabbit.” While the description Pearley gave to the officers of the seller directly after the buy did not include information about the person having a mous-tache or goatee, Pearley testified that it was Byrd whom he purchased the substance from and that he gave a description of Byrd at the end of the videotape.

¶ 11. Additionally, Pearley testified that he had not seen the videotape of the buy recently but had seen the photographs of Byrd on the table at trial. The jury also heard identification testimony from others naming Byrd as the person on the video involved in the transaction. At trial, Pear-ley’s identification of Byrd is described as follows:

Q. Have you seen any photographs of Mr. Byrd?
A. When?
Q. Recently.
A. Except for the ones right there on the table.
Q. Okay. Who showed you those?
A. Didn’t nobody show them to me. I saw them. They had them setting [sic] on the table.
[[Image here]]
Q. And you haven’t looked at any pictures?
A. No, sir.
Q. Haven’t looked at the video?
A. No, sir, not since the day it happened.
Q. And there is no doubt in your mind who is sitting over there at that table?
A. The guy I bought crack cocaine from. Rabbit.
Q. Rabbit?
A. Yes, sir.

¶ 12. There was no objection made following this testimony to suppress the identification on the ground that the in-court identification was tainted or improper due to a pre-trial look at photographs. To preserve an issue for consideration on appeal, a defendant must raise a timely objection. Longmire v. State, 749 So.2d 366(¶ 5) (Miss.Ct.App.1999). Having failed to raise a timely objection, this issue is procedurally barred. Id.

II.

Whether the verdict was against the weight and credibility of the evidence.

¶ 13. Byrd contends that because the in-court identification lacked credibility, the verdict was not supported by the evidence, and a directed verdict should have been granted.

¶ 14. The standard of review for this Court regarding the weight and credibility of evidence is stated as follows:

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Related

Metcalf v. State
904 So. 2d 1222 (Court of Appeals of Mississippi, 2004)

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Bluebook (online)
834 So. 2d 730, 2003 Miss. App. LEXIS 21, 2003 WL 69572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byrd-v-state-missctapp-2003.