Cousar v. State

855 So. 2d 993, 2003 WL 21665127
CourtMississippi Supreme Court
DecidedJuly 17, 2003
Docket2002-KA-01429-SCT
StatusPublished
Cited by32 cases

This text of 855 So. 2d 993 (Cousar v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cousar v. State, 855 So. 2d 993, 2003 WL 21665127 (Mich. 2003).

Opinion

855 So.2d 993 (2003)

Donald Ramiro COUSAR a/k/a "Coop"
v.
STATE of Mississippi.

No. 2002-KA-01429-SCT.

Supreme Court of Mississippi.

July 17, 2003.
Rehearing Denied October 16, 2003.

*994 Phillip Broadhead, Columbia, and Thomas M. Fortner, Jackson, attorneys for appellant.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

Before McRAE, P.J., WALLER and COBB, JJ.

COBB, Justice, for the Court.

¶ 1. Donald Ramiro Cousar was tried for sale of cocaine before a Hinds County Circuit Court jury on April 10, 2002. Cousar did not testify or call any other witnesses. He was found guilty and sentenced to twenty years in the custody of the Mississippi Department of Corrections. From that conviction and sentence, he appeals to this Court, citing as error the trial court's failure to fully instruct the jury regarding witness identification testimony, failure to grant a directed verdict, failure to grant his motion for J.N.O.V. or a new trial, and cumulative error. We find no merit to these assignments of error and thus affirm the trial court.

FACTS

¶ 2. On May 1, 2001, Reserve Officer Sergeant Jim Stegall (Stegall) was working with Officer James McGowan (McGowan) and other members in the Narcotics Division of the Jackson Police Department. They had received information that narcotics were being sold from Baker's Motel in Jackson, Mississippi. The agents planned an undercover operation in which Stegall, a reserve officer who completed his training at the police academy in 1995, would attempt to purchase drugs at the motel from a suspect known as Coop.[1] McGowan and others would be nearby, out of sight, listening to the conversation, if any should develop, between Stegall and Coop or any other would-be drug salesman. The conversation would be tape recorded via a body wire worn by Stegall and preserved for evidentiary purposes.

¶ 3. Upon arriving at Baker's Motel, Stegall asked to see Coop and was directed to the motel's interior lot. Coop himself subsequently *995 directed Stegall to a motel room where Stegall purchased eight rocks of cocaine from Coop. The transaction was heard in its entirety by Officer McGowan and other members of the Narcotics Division of the Jackson Police Department. Subsequent investigation by Officer McGowan identified Coop, who did maintenance and security work at the Baker's Motel, as being Donald Ramiro Cousar. Cousar was not arrested immediately due to an on-going investigation, but one month later he was arrested for the sale of cocaine to Stegall.

¶ 4. At his trial Cousar was identified in court by Officers McGowan and Stegall as being Coop, the seller of the eight rocks of cocaine. Additionally, Officer Stegall testified that the tape recording made of the purchase was an accurate representation of what occurred on May 1, 2001. The tape was played in its entirety for the jury, and Officer Stegall identified not only his own voice but also Coop's voice on the tape. Cousar did not testify, nor did he call any other witnesses.

ANALYSIS

I. JURY INSTRUCTIONS ON WITNESS IDENTIFICATION.

¶ 5. Before trial, counsel for Cousar submitted jury instruction D9-A, which read as follows:

The Court instructs the jury that whether DONALD RAMIRO COUSAR was the person who committed the crime as alleged and charged in the indictment in this case is a matter for you to decide. The state has the burden of proving beyond a reasonable doubt the identity of the perpetrator of the crime. If you are not convinced from the evidence beyond a reasonable doubt that DONALD RAMIRO COUSAR was the person who committed the crime, you must find him not guilty.
Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later. In appraising the identification testimony of a witness, you should consider the following: a) the opportunity that the witness had to view the defendant when the crime occurred; b) the witness's attention at the time; c) the accuracy of any prior descriptions of the defendant by the witness; d) the witness's level of certainty at the initial post crime confrontation, and e) the length of time between the crime and the confrontation.
If after considering all of the above you have a reasonable doubt that DONALD RAMIRO COUSAR is the person who committed the crime as alleged by the State of Mississippi, it is your sworn duty to find him "not guilty."

¶ 6. The State objected to factor "c" (accuracy of any prior descriptions of the defendant by the witness) stating that it did not apply to the facts of the case because none of its witnesses had given any prior descriptions of the defendant, and it would confuse the jury to leave that provision in the instruction. In response, counsel for Cousar pointed out that Officer McGowan's report did reflect a physical description of Coop[2] and that it could be *996 established by inference that the description must have come from Officer Stegall. The trial judge, however, recalled that on cross-examination, Stegall had "specifically [been asked] if he provided that description and he said no." Defense counsel then acknowledged that the description might have come from the informant. The trial court concluded that it was never established who provided a physical description of the person known as Coop as being 5'11" and 200 pounds. Therefore, provision "c" was redacted.

¶ 7. The trial court further concluded that any inconsistencies or discrepancies in the testimony were covered by instruction C-2, which read as follows:

You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves.
You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence that tends to show whether a witness is worthy of belief. Consider each witness' objectivity, state of mind, demeanor and manner while on the stand. Consider the witness' ability to observe the matters as to which he or she has testified, and whether he or she impresses you as having an accurate recollection of these matters. Consider the extent to which it is contradicted by other evidence in the case. Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause the jury to discredit such testimony. Two or more persons witnessing an incident or a transaction may see or hear it differently; and innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood. After making your own judgment, you will give the testimony of each witness such credibility, if any, as you may think it deserves.

Redacted instruction D-9A, as well as C-2, were given as jury instructions.

¶ 8. Citing Davis v. State, 568 So.2d 277 (Miss.1990), Cousar argues that the trial court erred in redacting factor "c" from his proposed jury instruction 9-A, because the revised instruction failed "to fully instruct the jury as to all the elements required for proper identification." His reliance on Davis is misplaced, however. The instruction at issue in

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Bluebook (online)
855 So. 2d 993, 2003 WL 21665127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cousar-v-state-miss-2003.