Esco v. State

755 So. 2d 1248, 2000 Miss. App. LEXIS 37, 2000 WL 116410
CourtCourt of Appeals of Mississippi
DecidedFebruary 1, 2000
DocketNo. 1998-KA-01961-COA
StatusPublished
Cited by2 cases

This text of 755 So. 2d 1248 (Esco 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
Esco v. State, 755 So. 2d 1248, 2000 Miss. App. LEXIS 37, 2000 WL 116410 (Mich. Ct. App. 2000).

Opinion

SOUTHWICK, P.J.,

for the Court:

¶ 1. Maurice D. Esco was convicted by a Madison County Circuit Court jury for sale of cocaine. On appeal Esco alleges that two discovery problems should have led to a mistrial, that testimony identifying Esco as the drug seller should have been excluded as being unfairly tainted, that cross-examination of a State witness was improperly limited, and that a jury instruction on the credibility of paid informants should have been given. We find no merit to these issues and affirm.

FACTS

¶ 2. On April 8, 1997, Bureau of Narcotics Agent Willie Watkins participated in a number of undercover drug purchases in Canton, Mississippi. He was accompanied to the sales by a paid confidential informant named Robert Armstrong. During the day, Watkins purchased two rocks of crack cocaine from a person whom Armstrong identified before the purchase as Maurice Esco.

¶ 3. Five to seven days following the drug buy, Watkins obtained a photocopy of Esco’s driver’s license. From this photograph Watkins reassured himself that Esco was the person from whom he purchased cocaine. Esco was later arrested and indicted for the sale. The confidential informant Armstrong did not testify at trial. Esco was found guilty by the jury and sentenced to ten years imprisonment. This is his appeal.

DISCUSSION

I. The State’s failure to produce the proper audiotape

¶ 4. Esco argues that a mistrial should have been declared when the trial court concluded that an audiotape provided to Esco during discovery may not have been the same one that the State wanted to introduce at trial. The most important fact on this issue is that the tape was never introduced. Esco argues that a mistrial was needed anyway because his trial [1251]*1251counsel “prepared his entire defense of Mr. Esco based on the existence of such a tape and explored the issue in his cross-examination” of Agent Watkins. There allegedly was extensive prejudice arising from the reference in front of the jury to the tape, but then the jury never heard the tape itself.

¶ 5. To understand the factual basis for Esco’s point about prejudice, we summarize the cross-examination. Esco’s counsel examined Agent Watkins who made the purchase, about the failure of the video equipment to operate. The camera that Watkins had in his vehicle should have captured Esco on film when he was at the window of the agent’s car. Then counsel asked Watkins the only four questions that deal with an audiotape. First he asked Watkins if there was audiotape equipment. Counsel then asked if he brought the tape with him. Next was asked whether Esco’s voice was on the audiotape. When the agent stated that he had not listened to it, the counsel asked if he would like to do so. That is all the jury heard asked about the tape.

¶ 6. As preparations were made to play the tape, a discussion occurred outside the presence of the jury between the attorneys and the court. The prosecutor announced that the equipment that would allow the tape to be heard by the jury, as opposed to through headphones, had not been brought. As that discussion proceeded, Esco’s counsel stated that in discovery he had been provided a different format tape. The prosecutor stated that no tape in that format existed on the case. Eventually the jury was excused so that the tape could be played before a decision was made on its introduction.

¶ 7. A variety of arguments and responses by the court were made at the hearing. The problem was said to be a discovery violation. Esco’s counsel also argued that tape had statements- different from those on the “other” tape. The only difference specifically referenced during the short hearing was that the informant Robert Armstrong said Esco’s name three times on this tape, and those statements were not on the version of the tape that the defense had been provided before trial.

¶ 8. On this record it is difficult to understand the differences between the two tapes, if in fact there ever were two versions. The trial court stated that the trial tape was nearly inaudible. If there was another tape that Esco’s counsel had heard, it was not available such that a comparison could be made. Based on the representations of Esco’s counsel that the tape that he heard before trial did not have Armstrong identifying Esco, the court agreed to exclude the offered tape. The court found that if Armstrong actually did say Esco’s name three times on the tape, and the defense had not earlier been provided the tape, then the probative value of its introduction would be outweighed by the prejudice arising from the surprise to the defendant.

¶ 9. Had this been a discovery violation, a uniform circuit court rule controls the judge’s response. U.C.C.C.R. 9.04(1). Under the rule, once the defense objected as occurred here, the trial court is to give his counsel a reasonable opportunity to become familiar with the undisclosed recording. If counsel then claims unfair surprise or prejudice, generally the court should exclude the evidence or grant a continuance. Id.

¶ 10. The trial court did not quite follow these guidelines but the protections were applied. When the defense objected to the recording, the trial court listened to it and determined that it had no probative value and should not be admitted. Esco received in that process more than was required. There is no error prejudicial to him arising from the discovery rules problem.

[1252]*1252¶ 11. Though the judge excluded the recording, Esco still wanted a mistrial. After the motion for mistrial was denied, Esco’s trial counsel agreed that the proper means to handle the problem with the tape was to announce to the jury that it had no probative value as to the identity of the person engaged in the sale. We do not find any merit to the argument that this snafu with the tape prejudiced Esco because he had extensively addressed the tape on cross-examination. Four questions is not extensive cross-examination. The trial court handled the unusual problem in an even-handed manner.

II. Failure to produce the photograph of Esco that Agent Watkins had examined

¶ 12. A second issue relating to discovery was that the document with Esco’s picture that Agent Watkins had used a few days after the drug purchase could not be found. By “document,” we are referring to what probably was a normal letter-size paper photocopy of a driver’s license. During Esco’s cross-examination of Agent Watkins, the witness stated that a few days after the drug sale a copy of Esco’s driver’s license photograph and the license’s printed information had been provided to him by another law enforcement officer. On appeal Esco argues that Watkins’s sole basis for being able to identify him was this picture with Esco’s name on it. That is not a fair summary of the testimony, but the issue must be pursued nonetheless.

¶ 13. Counsel’s first knowledge of the picture was from the copy that had been given him in discovery. At trial it became obvious that this was a copy of a replacement picture and license information, not a copy of the exact document that Watkins had used a few days after the drug purchase. The picture was too dark to decipher, so the trial was delayed as someone went to the state highway patrol office in Jackson seeking a new version. That ultimately could not be obtained. The jury never saw the exact copy that Watkins had used.

¶ 14.

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Related

Benton ex rel. Brand v. Ivy
121 So. 3d 226 (Court of Appeals of Mississippi, 2012)
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818 So. 2d 1260 (Court of Appeals of Mississippi, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
755 So. 2d 1248, 2000 Miss. App. LEXIS 37, 2000 WL 116410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/esco-v-state-missctapp-2000.