Fuller v. State

910 So. 2d 674, 2005 WL 527952
CourtCourt of Appeals of Mississippi
DecidedMarch 8, 2005
Docket2003-KA-01740-COA
StatusPublished
Cited by5 cases

This text of 910 So. 2d 674 (Fuller 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
Fuller v. State, 910 So. 2d 674, 2005 WL 527952 (Mich. Ct. App. 2005).

Opinion

910 So.2d 674 (2005)

Robert FULLER, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2003-KA-01740-COA.

Court of Appeals of Mississippi.

March 8, 2005.

*676 Raymond M. Baum, Winona, attorney for appellant.

Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.

Before KING, C.J., CHANDLER and ISHEE, JJ.

CHANDLER, J., for the Court.

¶ 1. An Attala County jury convicted Robert Fuller of sale of cocaine. The court sentenced Fuller to serve twelve years in the custody of the Mississippi Department of Corrections, to pay court costs and a $5,000 fine, and to undergo drug and alcohol treatment. Fuller appeals, and argues that the trial court erred by denying his motion for a continuance, by excluding evidence of a witness's criminal history, and by denying his motion for a new trial on the ground that the verdict was against the overwhelming weight of the evidence.

¶ 2. Finding no error, we affirm.

*677 FACTS

¶ 3. On December 20, 2001, Agents Charles Harris, Adrian Armon, and Jeff Overstreet, of the Mississippi Bureau of Narcotics, met informant Connie Young at an airport near Kosciusko in Attala County. Young was to attempt to purchase cocaine from Robert Fuller. After searching Young's person and her vehicle, Harris installed an audio transmitter on her body and a pinhole video camera facing the driver's seat above the back seat of her car. He gave her an evidence bag and $40 in official state funds. With the agents following her, Young drove from the airport, stopped for gasoline, and proceeded to a residence in Kosciusko known as "The Hole."

¶ 4. A videotape introduced at the trial showed that Young parked in the driveway and waved. A man approached the driver's side of her car. Young told the man, "I need a forty." The man said, "Alright" and took the money she handed him. He went inside the house, returned, and gave Young an item. After a brief conversation, Young drove away. She placed the item the man had given her into the evidence bag.

¶ 5. Harris testified that he and the other agents met Young back at the airport. Young gave Harris the evidence bag. He field tested the contents and they tested positive for cocaine. Harris sealed the bag, had Young initial and date it, and placed it into a briefcase in his car. Then, he searched Young's car and person. Later, Harris delivered the package to the crime lab in Jackson. Testing at the lab revealed the substance to be .1 gram of cocaine. At the trial, Harris identified the man's voice he heard over the audio transmitter as that of Fuller. Young identified Fuller as the person who had sold her cocaine and stated that she had known him for three to four years prior to December 2001. The jury convicted Fuller.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GRANT A CONTINUANCE BASED ON INFORMATION PROVIDED THE DEFENDANT ON THE DAY OF THE TRIAL PURSUANT TO DISCOVERY REQUESTS?

¶ 6. The trial occurred on March 19, 2003. On the morning of the trial, the State provided Fuller with an NCIC report on Young showing her Pennsylvania arrests on May 24, 1988 on charges of theft by deception, receiving stolen property, forgery, and two counts of access device fraud, and her Pennsylvania arrest on March 11, 1993 for prostitution. The State moved in limine to exclude the evidence of Young's arrests based on Mississippi Rule of Evidence 609, which governs admissibility of a witness's prior convictions. The State argued that, because the NCIC report revealed only that Young had been charged, not convicted, the information in the report would not be admissible for impeachment purposes as provided in Rule 609. Rule 609 states, in pertinent part:

Impeachment By Evidence of Conviction of Crime
(a) General Rule. For the purpose of attacking the credibility of a witness, (1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, . . . and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a *678 period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by the specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old is not admissible unless the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

¶ 7. Fuller moved for a continuance to allow him time to investigate whether Young's arrests had resulted in convictions that could be used for impeachment purposes. He argued that he was entitled to a continuance because the State had committed a discovery violation by not timely disclosing the NCIC report. Fuller also complained that the State had told him the day before that Young had a "clean" criminal record. The State maintained that it had only come into possession of the NCIC report that morning and previously had been informed that Young had a clean record.

¶ 8. The trial court reserved ruling on the State's motion in limine until Young could be questioned about whether or not her Pennsylvania arrests had resulted in convictions. The court held that the State had not committed a discovery violation by failing to previously disclose the NCIC report because a witness's criminal history is not required discovery under Uniform Rule of Circuit and County Court Procedure 9.04. The court denied Fuller's motion for a continuance because there had been no discovery violation.

¶ 9. Later, Fuller and the State examined Young outside the presence of the jury. Young stated that, to the best of her knowledge, the charges brought against her in Pennsylvania had not resulted in convictions and that she had been told by a judge she could have the charges expunged from her record. Upon further questioning, she admitted that she could not say conclusively whether the 1988 charges had resulted in any convictions. She said that the prostitution charge had been dropped. She said that she had never been charged with any crime in any other state. The trial court held that there was no proof the charges had resulted in convictions and excluded the charges from evidence pursuant to Mississippi Rule of Evidence 609. Alternatively, the court held that, even assuming the charges had resulted in convictions, they would be inadmissible under Rule 609(b) because they were over ten years old and Fuller had failed to prove that the probative value of the convictions substantially outweighed their prejudicial effect. Fuller renewed his motion for a continuance.

¶ 10. The decision to grant or deny a continuance is left to the sound discretion of the trial court. Johnson v. State, 631 So.2d 185, 189 (Miss.1994). This Court will not reverse the lower court's denial of a continuance unless it appears that the denial resulted in manifest injustice. Id.

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Bluebook (online)
910 So. 2d 674, 2005 WL 527952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuller-v-state-missctapp-2005.