Gardner v. State

792 So. 2d 1000, 2001 WL 152142
CourtCourt of Appeals of Mississippi
DecidedFebruary 20, 2001
Docket1999-KA-01759-COA
StatusPublished
Cited by3 cases

This text of 792 So. 2d 1000 (Gardner 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
Gardner v. State, 792 So. 2d 1000, 2001 WL 152142 (Mich. Ct. App. 2001).

Opinion

792 So.2d 1000 (2001)

Timothy GARDNER a/k/a Timothy L. Gardner, Appellant
v.
STATE of Mississippi, Appellee.

No. 1999-KA-01759-COA.

Court of Appeals of Mississippi.

February 20, 2001.
Rehearing Denied May 22, 2001.
Certiorari Denied August 30, 2001.

*1002 David Clay Vanderburg, David L. Walker, Southaven, for Appellant.

Office of the Attorney General by Jean Smith Vaughan, for Appellee.

Before SOUTHWICK, P.J., LEE, and THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. Timothy Gardner was convicted of the sale of cocaine, a schedule II controlled substance, in Tallahatchie County. On appeal, he asserts the following errors:

I. WHETHER THE LOWER COURT ERRED IN OVERRULING GARNER'S MOTION FOR A MISTRIAL MADE DURING THE STATE'S CLOSING ARGUMENT.

II. WHETHER THE LOWER COURT ERRED IN FAILING TO GRANT GARDNER'S MOTION FOR A MISTRIAL DURING THE TESTIMONY OF STATE'S WITNESS AGENT BISHOP.

III. WHETHER GARDNER'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL AND WHETHER THE LOWER COURT ERRED IN REFUSING TO PERMIT GARDNER NEW COUNSEL.

IV. WHETHER THE VERDICT OF THE LOWER COURT WAS MADE AGAINST THE OVERWHELMING WEIGHT OR SUFFICIENCY OF THE EVIDENCE.

*1003 FACTS

¶ 2. On August 21, 1998, Timothy Gardner was arrested for the sale of crack cocaine in Charleston, Mississippi. Gardner sold the controlled substance to Misty Ford, a confidential informant working for the State. Ford was wired with a transmitter, which recorded an audio record of the sale. The State also recorded the sale by a video camera installed in the vehicle Ford drove to the sale location. The State also photographed several shots of a hand to hand exchange made between Gardner and Ford. The sale was also witnessed by Chris Bishop, Lee Burkett and William Brewer, Sheriff of Tallahatchie County.

¶ 3. Bishop, an agent of the Mississippi Bureau of Narcotics, testified that he clearly witnessed Gardner execute the sale in question. Bishop further testified that he had purchased cocaine from Gardner on several occasions of undercover police investigation work during the four month period in which the Mississippi Bureau of Narcotics worked with Sheriff Brewer in building a case against Gardner. Bishop identified Ford as the second party involved in the recorded sale in question.

¶ 4. Ford testified that she was a former cocaine user. She further stated that she had been incarcerated for prescription forgery before working as a confidential informant. Ford identified Gardner as the man selling her the cocaine in the video, on the audiotape and in the photographs.

¶ 5. The video and photographs show the following events take place. Ford asked Gardner for "a twenty." Gardner pulled out a clear plastic bag filled with crack cocaine, removed a rock and handed it to Ford. Ford pulled a previously marked hundred dollar bill from her back pocket and gave it to Gardner. Ford then returned to the truck. During a post-buy meeting with Agent Burkett, Ford turned the crack rock in and initialed the bag in which it was deposited.

¶ 6. The State had the rock tested by the Mississippi Crime Laboratory in Batesville. J.C. Smiley, who was accepted as an expert in forensic chemistry, testified that the rock had been tested at the Lab. Smiley further stated that the rock was 0.42 grams of crack cocaine.

¶ 7. Gardner was the sole witness for the defense. He testified that he was not the person engaged in the sale of cocaine shown in the video or the photographs. However, Gardner admits that Ford approached his residence in the beginning of the video. When asked about the uncanny resemblance between himself and the man recorded in the State's evidence, Gardner claimed that there were many people in Charleston who shared his physical appearance and characteristics.

¶ 8. Gardner was found guilty of the sale of cocaine and sentenced to fifteen years in the Mississippi Department of Corrections with a post-release supervision of five years.

ANALYSIS

I. WHETHER THE LOWER COURT ERRED IN OVERRULING GARDNER'S MOTION FOR A MISTRIAL MADE DURING THE STATE'S CLOSING ARGUMENT.

II. WHETHER THE LOWER COURT ERRED IN FAILING TO GRANT GARDNER'S MOTION FOR A MISTRIAL DURING THE TESTIMONY OF STATE'S WITNESS AGENT BISHOP.

STANDARD OF REVIEW

¶ 9. The trial court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant's *1004 case. URCCC § 5.15. The granting of a motion for a mistrial is within the sound discretion of the trial judge. Bass v. State, 597 So.2d 182, 191 (Miss.1992). The trial judge "is in the best position for determining the prejudicial effect" of an objectionable remark by either the prosecutor or a witness. Perkins v. State, 600 So.2d 938, 940 (Miss.1992). Where "serious and irreparable damage" has not resulted, the judge should "admonish the jury then and there to disregard the impropriety." Hoops v. State, 681 So.2d 521, 528 (Miss. 1996); Roundtree v. State, 568 So.2d 1173, 1178 (Miss.1990). The jury is presumed to have followed the admonition of the trial judge to disregard the remark. Dennis v. State, 555 So.2d 679, 682-83 (Miss.1989). See also Lester v. State, 767 So.2d 219, 222-23 (Miss.Ct.App.2000). "It is well settled that when the trial judge sustains an objection to testimony and he directs the jury to disregard it, prejudicial error does not result." Estes v. State, 533 So.2d 437, 439 (Miss.1988). See also Perkins, 600 So.2d at 940.

A. BISHOP'S TESTIMONY

¶ 10. During the direct examination of the State's first witness, Agent Bishop, the following statements were made:

Q. Okay, and who did that truck come back registered and belonged to?
A. Mr. Gardner's grandfather.
Mr. Vanderburg: Objection to hearsay.
The Court: I'll sustain the objection.
Q. The truck, who is it registered to?
A. Mr. Gardner's grandfather.
Mr. Vanderburg: Objection, I ask for a mistrial. You sustained my objection.
The Court: I sustained the objection.
Mr. Murphey: I'm sorry.
The Court: Ladies and gentlemen, please disregard the last statement by the witness. And, sir, if I've got an objection, if you keep on testifying I can't deal with the objection. When there's an objection please stop. I'll sustain the objection. The motion for mistrial will be overruled. Ladies and gentlemen, please disregard the last statement from the witness regarding any alleged ownership of the vehicle. That's hearsay. I ask you to disregard it.

¶ 11. During the direct examination of Gardner, the sole witness for the defense, the following statements were made:

Q. Back in August of 1998, did you own that Dodge truck?
A. Well, I was a co-signer. My grandfather owned it.
Q. Your grandfather owned it. And what's his name?
A. Mr. Richard L. Gardner.
Q. He owned the truck but you were a co-signer, is that correct?
A. Yes, sir.
Q. And it was a Dodge truck?
A. Yes, sir.
Q. Did you drive the truck?
A. Yes, sir, I did.

¶ 12.

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Cite This Page — Counsel Stack

Bluebook (online)
792 So. 2d 1000, 2001 WL 152142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-v-state-missctapp-2001.