David Ware v. State of Mississippi

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-KA-00319-COA

DAVID WARE A/K/A DAVID WAYNE WARE APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 01/23/2018 TRIAL JUDGE: HON. JOHN ANDREW GREGORY COURT FROM WHICH APPEALED: CHICKASAW COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH DISTRICT ATTORNEY: BENJAMIN F. CREEKMORE NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 04/23/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE BARNES, C.J., WESTBROOKS AND LAWRENCE, JJ.

BARNES, C.J., FOR THE COURT:

¶1. David Ware was indicted for the sale of a controlled substance under Mississippi

Code Annotated section 41-29-139(a) (Rev. 2009) in the Chickasaw County Circuit Court.

After a one-day trial, he was convicted and sentenced to thirty years, with ten years

suspended, in the custody of the Mississippi Department of Corrections (MDOC). Ware

appeals, claiming the trial court erred in failing to apply the ameliorative amendments of

section 41-29-139(b)(1)(A) for his sentencing, which became effective in July 2014, prior

to his trial. Under the amended statute, Ware would have been sentenced only to eight years. Ware also argues the trial court erred in denying a cautionary jury instruction regarding the

testimony of confidential informants. Finding no error, we affirm.

FACTS

¶2. In May 2013, Chief Deputy Keith Roberson of the Chickasaw County Sheriff’s

Office conducted an undercover drug buy in Okolona, Mississippi, with confidential

informant Allen Hunter. Prior to meeting with Roberson, Hunter called Ware to buy some

crack cocaine. During the “pre-buy” meeting with Roberson, Hunter was thoroughly

searched, and a video camera was hidden in his vehicle to capture the sale. Roberson gave

Hunter $60 to purchase the drugs.

¶3. At Ware’s trial, the videotape of the transaction was entered into evidence and played

for the jury. Ware called Hunter to come over because “Boss,” the drug dealer, was ready

for them. Hunter picked Ware up at his apartment. Ware got into the vehicle while on the

phone with Boss. Hunter drove to the Townhouse Apartments and gave Ware the $60.

Ware told Hunter to circle the block. Ware went into the apartments. During this time,

Hunter was speaking to Roberson on an open-line cell phone in his vehicle. Hunter returned

to the apartments as Ware was walking out. Ware got in the vehicle and attempted to hand

Hunter the crack cocaine. Hunter told Ware to hold it down in an attempt to get the drugs

on camera. Ware then handed Hunter three unbagged rocks of crack cocaine. Hunter drove

Ware back to his apartment and returned to the post-buy location.

¶4. During the post-buy meeting, Hunter gave Roberson the drugs and recording

equipment. Roberson searched Hunter again and paid him $100 for the work. Hunter

2 testified that he did not know Boss’s name and that Boss would not sell drugs to him

because Boss did not trust him. Roberson sealed the drugs in an evidence bag and sent the

bag to the Tupelo Crime Lab. A forensic analyst tested the drugs and determined the three

substances consisted of 0.49 grams of crack cocaine.

ANALYSIS

I. Sentencing

¶5. Ware argues that the trial court failed to apply the ameliorative provisions of section

41-29-139(b)(1)(A); thus, he argues this matter should be remanded for resentencing under

the more lenient provisions of the amended statute. The interpretation of a statute presents

a question of law which the appellate court reviews de novo. Coleman v. State, 947 So. 2d

878, 880 (¶9) (Miss. 2006).

¶6. On the day Ware committed the crime, section 41-29-139 provided that the maximum

sentence for the sale of cocaine in any quantity was thirty years. In July 2014, prior to

Ware’s trial and sentencing, the effective statute provided sentencing tiers based on the

amount of the controlled substance sold. Post-amendment, the statute provides that the

maximum sentence for Ware’s crime would be eight years. At the pretrial hearing, however,

the State argued that the old statutory punishment was applicable, and the trial court agreed.

¶7. Ware alleges that because section 41-29-139 did not contain an element concerning

weight of the controlled substance prior to the amendment, it creates an entirely new crime

with this new element. Accordingly, Ware argues Mississippi Code Annotated section 99-

19-33 (Rev. 2015) applies. The statute provides: “If any statute shall provide a punishment

3 of the same character, but of milder type, for an offense which was a crime under

pre-existing law, then such milder punishment may be imposed by the court . . . .” Miss.

Code Ann. § 99-19-33.

¶8. The State claims Mississippi Code Annotated section 99-19-1 (Rev. 2015) applies.

Generally, this statute provides that the version of the statute in effect at the time the offense

is committed will continue to control the defendant’s prosecution and his punishment. It

reads:

No statutory change of any law affecting a crime or its punishment or the collection of a penalty shall affect or defeat the prosecution of any crime committed prior to its enactment, or the collection of any penalty, whether such prosecution be instituted before or after such enactment; and all laws defining a crime or prescribing its punishment, or for the imposition of penalties, shall be continued in operation for the purpose of providing punishment for crimes committed under them, and for collection of such penalties, notwithstanding amendatory or repealing statutes, unless otherwise specially provided in such statutes.

Miss. Code Ann. § 99-19-1 (emphasis added). In Walters v. State, 206 So. 3d 524, 530

(¶17) (Miss. 2016), the Mississippi Supreme Court pronounced that, through the provisions

of section 99-19-1, “the Legislature has given strict instruction that the definition of a crime

is controlled by the relevant criminal statute in place at the time the crime was committed.”

In Walters, the defendant argued that “he should receive the benefit of a jury instruction

listing the elements of grand larceny as they existed at the time of trial,” rather than the less

advantageous elements existing at the time the crime was committed. Id. at 531 (¶17). The

supreme court rejected this argument, stating “the plain language of [s]ection 99-19-1

required the trial court to instruct the jury on the elements . . . as they existed at the time the

4 crime was committed.” Id. at 530-31 (¶17). This same principle applies to Ware’s

sentencing.

¶9. As the State points out, Wilson v. State, 194 So. 3d 855 (Miss. 2016), addressed the

same issue Ware now raises but for a different crime. In Wilson, the circuit court sentenced

Wilson to ten years for receiving stolen property. The defendant, relying on section 99-19-

33, argued that the circuit court should have sentenced him under the newer, more lenient

version of the applicable statute. The supreme court pointed to the language in section 99-

19-1 that states “no new statutory enactment shall defeat the prosecution of a crime

committed before the enactment of the new statute . . . unless otherwise specially provided

. . . .” Id. at 867-68 (¶42). Accordingly, the supreme court concluded that, in cases like

Wilson, “the sentencing court must follow the version of a statute in existence at the time a

crime was committed.”1 Id. at 868 (¶43).

¶10. Ware, however, cites to a footnote in Wilson that section 99-19-33 applies not just

to “situations in which the punishment for the same crime has been changed, but in which

the Legislature has created a new, second crime that criminalizes the same behavior.” Id.

at 872 n.3. Ware maintains the amendment changed the elements of the crime, not just the

penalty, of section 41-29-139, creating a new crime, with a new subsection, and a new

sentence. We disagree.

¶11. Here, as in Wilson, section 99-19-33 does not apply because there is a change in

1 The Wilson opinion overruled several cases which were in conflict with the legislative pronouncement of section 99-19-1, and emphasizes that the supreme court has no power to overrule statutes unless found unconstitutional. Id. at 868 (¶43).

5 punishment for the same crime. We cannot say that the addition of a quantity element to the

crime of sale of a controlled substance created a completely new crime, just as the

modification of the value of receiving stolen property did not create a new crime in Wilson.

Accordingly, we find Ware was correctly sentenced under the provisions of the statute in

effect at the time he committed the crime in May 2013.

II. Jury Instruction

¶12. Ware claims the trial court erred in denying his cautionary instruction regarding the

testimony of the confidential informant. Generally, the decision to give or refuse jury

instructions is within the discretion of the trial court. Accordingly, this Court reviews the

trial court’s refusal of a jury instruction under an abuse-of-discretion standard. Thomas v.

State, 195 So. 3d 843, 849 (¶15) (Miss. Ct. App. 2016). In determining error regarding the

decision to give or refuse jury instructions, the instructions that are given are read as a

whole. “If all instructions taken as a whole fairly, but not necessarily perfectly, announce

the applicable rules of law, no error results.” Id.

¶13. Arguments similar to Ware’s have been rejected by the Mississippi Supreme Court

and this Court. “[B]oth Courts have held that it is not an abuse of discretion to refuse such

an instruction where the CI’s arrangement with the prosecution is disclosed to the jury, and

the CI is subject to cross-examination on the subject.” Id. at (¶16) (citing Corrothers v.

State, 148 So. 3d 278, 302-03 (¶55) (Miss. 2014); Webber v. State, 108 So. 3d 930, 931 (¶7)

(Miss. 2013); Wallace v. State, 139 So. 3d 75, 77-78 (¶¶8-9) (Miss. Ct. App. 2016); Harris

v. State, 144 So. 3d 199, 203 (¶¶16-17) (Miss. Ct. App. 2014)). Here, both circumstances

6 were met. Deputy Roberson and Hunter testified about Hunter’s role as a confidential

informant in this case and his compensation of $100. Both individuals were subject to cross-

examination on this matter. Further, the jury was instructed to use “good common sense and

sound honest judgment” in weighing the credibility of each witness.

¶14. The dissent cites Moore v. State, 787 So. 2d 1282 (Miss. 2001), and Pitchford v.

State, 45 So. 3d 216 (Miss. 2010), for the proposition that a cautionary instruction regarding

the unreliability of jailhouse informants is required. In Webber, however, the supreme court

decided that, with regard to confidential informants, the trial court’s failure to give a

cautionary jury instruction is not an abuse of discretion when the two criteria cited earlier

are met: the details of the CI’s arrangement with law enforcement is disclosed to the jury,

and that the CI is subject to cross examination. Webber, 108 So. 3d at 931 (¶7). In 2014,

the supreme court in Corrothers v. State, 148 So. 3d 278, 302-03 (¶55) (Miss. 2014),

specifically declined to apply Moore’s cautionary jury instruction requirement in favor of

the more recent Webber decision; the Court found it unnecessary to give a cautionary

informant instruction with respect to jailhouse informants when the two Webber criteria

were met. This Court has followed Webber in the recent cases of Thomas, Wallace, and

Harris, and it is proper to do so here. Moreover, any possible unreliability of the

confidential informant’s testimony was rebutted by the videotaped footage of the drug sale.

We conclude the trial court did not abuse its discretion in denying Ware’s cautionary

instruction regarding the confidential informant.

¶15. Ware’s conviction and sentence are affirmed.

7 ¶16. AFFIRMED.

CARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, LAWRENCE AND C. WILSON, JJ., CONCUR. McCARTY, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY McDONALD, J.

McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART:

¶17. Because the defendant in this case was denied his right to a jury instruction based on

longstanding Mississippi precedent that the testimony of a snitch is inherently unreliable, I

must respectfully dissent.

¶18. Our Supreme Court has explained “the importance of cautionary instructions when

such ‘snitch’ testimony is offered.” Moore v. State, 787 So. 2d 1282, 1287 (¶15) (Miss.

2001). In that case, the Supreme Court reversed because a given jury instruction “did not

advise the jury to weigh [the snitch’s] testimony with ‘caution and suspicion.’” Id. at (¶16).

This is because the Court has seen jailhouse informants or snitches as having an inherent

“unreliability.” Id. And why the Court has also held that “where the informant did receive

a benefit, the jury should be instructed to regard such testimony with “‘caution and

suspicion.’” Pitchford v. State, 45 So. 3d 216, 239 (¶89) (Miss. 2010) (quoting Moore, 787

So. 2d at 1287 (¶15)).

¶19. Here, Ware sought the following instruction:

The Court instructs the jury that the testimony of an informant who provides evidence against a defendant for pay, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. You the jury must determine whether the informant’s testimony has been affected by interest or prejudice against the defendant.

Despite clear precedent which allows the instruction, the trial court refused to give it. This

8 is a very basic instruction which our Supreme Court has required for the better part of twenty

years. Under our standard of review, we should not pretend that the jury instructions fairly

announced the applicable rules of law. The instructions simply did not cover this very

particular point of law. The majority explains that the snitch’s pay was disclosed in

testimony; yet this is not the same as a jury instruction. This matter of factual testimony

cannot compare with the legal instructions of the Court. “Jury instructions are to advise the

jury of applicable law and to instruct the jury to make the factual findings necessary to reach

a verdict,” whether in a civil or a criminal case. 2 Jeffrey Jackson, et al. Mississippi Civil

Procedure §20:1 (2018).

¶20. Nor does a boilerplate instruction to use “good common sense and sound honest

judgment” come close to complying with Moore or Pitchford. This is exactly why the

Supreme Court strongly urged us to use a jury instruction informing juries that snitch

testimony was to be accorded lesser deference, because it is inherently unreliable.

Testimony expressed in trial does not have the same imprimatur of authority as does a jury

instruction from the trial court.

¶21. As the majority sets out, there is precedent which conflicts with Moore and Pitchford.

The better path is to correctly instruct the jury, since so much is at stake. The Supreme

Court has made clear that “a defendant is entitled to have jury instructions given which

present his theory of the case,” save in instances where the instruction “incorrectly states the

law,” “is covered fairly elsewhere in the instructions,” or “is without foundation in the

evidence.” Clayton v. State, 106 So. 3d 802, 804 (¶6) (Miss. 2012). In this case, it is

9 undisputed that the instruction correctly stated the law. The specific point of the inherent

unreliability of snitch testimony was not fairly covered elsewhere, and the instruction clearly

had foundation in the evidence. The court should have given the instruction.

¶22. It is easy to give a defendant’s requested jury instruction when it correctly instructs

the jury and is based upon ample precedent. There was no reason to refuse it here, and there

is no reason to strain to approve the refusal when it violates sound precedent and sound

policy. Because the jury was not correctly instructed, and a proper jury instruction was

wrongfully denied, I respectfully dissent.

McDONALD, J., JOINS THIS OPINION.