Jackson v. State

885 So. 2d 723, 2004 WL 1153757
Court of Appeals of Mississippi·Decided May 25, 2004·No. 2003-KA-00384-COA·Published·Cited by 3 cases

Opinion

885 So.2d 723 (2004)

Harry JACKSON, Jr., Appellant,
v.
STATE of Mississippi, Appellee.

No. 2003-KA-00384-COA.

Court of Appeals of Mississippi.

May 25, 2004.
Rehearing Denied September 7, 2004.
Certiorari Denied November 4, 2004.

*725 James H. Arnold, Durant, attorney for appellant.

Office of the Attorney General by John R. Henry, attorney for appellee.

Before SOUTHWICK, P.J., THOMAS, IRVING and GRIFFIS, JJ.

THOMAS, J., for the Court.

¶ 1. Harry Jackson, Jr. was convicted in the Circuit Court of Amite County of sale of a schedule II controlled substance and was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections, with fifteen to serve and the remaining five years on post-release supervision. Aggrieved, he asserts the following issues on appeal:

I. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT AND, ALTERNATIVELY, THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

II. PROSECUTORIAL MISCONDUCT DENIED JACKSON A FAIR TRIAL.

III. THE TRIAL COURT ERRED IN FAILING TO GIVE AN INSTRUCTION THAT SANDER'S PRIOR INCONSISTENT STATEMENT COULD NOT BE USED AS SUBSTANTIVE EVIDENCE.

Finding no error, we affirm.

FACTS

¶ 2. On April 2, 2001, Mississippi Bureau of Narcotics agents prepared to make a purchase of narcotics in Amite County, Mississippi. The agents met with a confidential informant and decided to attempt to purchase narcotics from Reginald Graves. Agent Jason Powell went undercover with the confidential informant after the usual preliminary matters were completed. When Graves was contacted at his residence, he told Powell that he did not have any drugs on hand. Graves got in the car with the informant and Powell and took them to a location in Gloster, Mississippi. Another agent followed in an unmarked car and listed to a wireless transmission from Agent Powell.

¶ 3. At the location in Gloster, Graves got out of the car and went and talked to a group of men. He returned and they left the area. They drove around for a few minutes and returned. Graves again got out of the car and returned again, telling Powell and the informant that the drugs still needed to be weighed and that they had to leave and come back shortly. Graves, Powell, and the informant left and went to the Car Quest auto parts store in Gloster. A short while later, a car passed and Graves remarked that the drugs were in that car and that they could return to the location to pick them up. They returned and pulled in behind the car that had passed them at the Car Quest. When Graves got out of the car, Powell radioed the tag number in to other agents. The car was registered to Harry Jackson, Jr.

¶ 4. Graves approached two men standing near the car and separate from the others. He returned to the car and asked for money. Powell gave Graves $850. Graves returned to the two men. After some movements with their hands, Graves returned to the vehicle with a bag of white powder. Graves elected to stay at the location and not leave with the informant and Powell. Upon leaving, Powell rendezvoused *726 with the other agents. Powell identified through photo identification Harry Jackson and Murphy Sanders as the two men Graves dealt with in the cocaine buy. The substance sold to Powell was 25.3 grams of cocaine.

¶ 5. At trial, Agent Powell testified along with Agent Sheldon Joliff, the agent that had monitored the wireless transmission and followed in an unmarked car. Powell testified that Jackson's car was the vehicle Graves said carried the drugs, that it was present at the scene, and that Jackson was one of the two people to whom Graves had given the money and gotten the cocaine.

¶ 6. The defense presented its case by first calling Graves to testify. Graves testified that his cousin, Navaree Green, was driving Jackson's car because he had been in the process of buying the car from Jackson. Graves testified that Jackson was not present on that particular day at the scene and that Green was the individual who had participated in the sale of the cocaine. Graves admitted that Green was a short, stout man and Jackson was a tall, slender man and that it would be difficult to confuse the two. Graves also testified that Green had died prior to trial and was unavailable to testify. Graves testified that Powell had been drinking beer and that Jackson's car was burgundy rather than green as testified to by Powell and Joliff.

¶ 7. Jackson called Murphy Sanders to testify. Sanders admitted to being at the scene although he did not know if Jackson was there or not. He also testified that he did not know Navaree Green and could not say if he was present. Sanders testified that he did not know of any sale of cocaine and had not taken part in the sale. Upon this testimony, the district attorney asked Sanders if he made a statement to a deputy after his arrest that Jackson was present and that Jackson had offered Sanders $100 if he would help Jackson sell some dope. Sanders admitted talking to the deputy and at one point admitted telling the deputy that he took credit that day because of his children. Sanders would neither confirm or deny the other statements testifying instead that he did not know or could not remember what he told the deputy.

¶ 8. The defense then called Nekiesha Simmons, Jackson's ex-girlfriend. Simmons invoked her Fifth Amendment privilege against self-incrimination and refused to testify. The court held an off-the-record hearing regarding Simmons's testimony and decided to treat her as an unavailable witness. In doing so, the court allowed sworn testimony by Simmons given at a previous hearing. In the testimony, Simmons stated that she was in Massachusetts in April 2001 and that Jackson had flown up to see her in Massachusetts for two weeks at the beginning of April and he could not have been present in Amite County, Mississippi, on April 2, 2001. At the time of the testimony, Simmons was employed in Georgia in law enforcement, but she had not attempted to contact anyone or do anything to help Jackson prior to her testimony. Simmons stated that Jackson's sister worked for Continental Airlines and that Jackson flew Continental because his sister could provide him with inexpensive tickets.

¶ 9. In rebuttal, the State called a supervisor of ticket documentation for Continental Airlines. She testified that Jackson did fly to the Northeast in April 2001, but not until April 20. The information showed Jackson returned on April 23. She testified that Jackson had an electronic ticket and that he would have had to show photo identification in order to board the flights. The State then introduced documentation received from the defense which showed a flight by Jackson on March 31 with a *727 return date of April 23. The supervisor noted that all of the flight numbers and data were the same as on her official records and concluded that the documents showing a departure of March 31 were forged. She testified that it would have had to have been done on a typewriter or computer outside of Continental because Continental's records have not been altered.

¶ 10. The State then called Deputy Tim Wroten, the deputy that had talked to Murphy Sanders at his arrest. Wroten admitted that he did not take an official statement from Sanders but testified that Sanders told him that Jackson had gotten the cocaine in McComb and offered Sanders $100

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Jackson v. State, 885 So. 2d 723, 2004 WL 1153757 (Mich. Ct. App. 2004).

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