Johnston v. State

730 So. 2d 534, 1997 WL 539535
CourtMississippi Supreme Court
DecidedSeptember 4, 1997
Docket93-KA-01418-SCT
StatusPublished
Cited by15 cases

This text of 730 So. 2d 534 (Johnston v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnston v. State, 730 So. 2d 534, 1997 WL 539535 (Mich. 1997).

Opinion

730 So.2d 534 (1997)

David JOHNSTON
v.
STATE of Mississippi.

No. 93-KA-01418-SCT.

Supreme Court of Mississippi.

September 4, 1997.
Rehearing Denied October 23, 1997.

Randall Harris, Richard A. Rehfeldt, Jackson, Attorneys for Appellant.

Michael C. Moore, Attorney General, Jeffrey A. Klingfuss, Sp. Asst. Atty. Gen., Jackson, Attorneys for Appellee.

EN BANC.

SMITH, Justice, for the Court:

¶ 1.David Johnston was convicted in the Circuit Court of Winston County for the sale *535 of less than one ounce of marijuana and was sentenced to serve a term of three years in the custody of the Mississippi Department of Corrections, pay a fine of two thousand dollars, pay a crime lab fee of four hundred twenty five dollars and court costs plus assessments. Johnston's post-trial motions were denied.

¶ 2. Aggrieved, Johnston appeals to this Court raising four issues for consideration. After thorough examination of the record we find no error by the trial court and accordingly affirm Johnston's conviction and sentence.

FACTS

¶ 3. Ray Brown, an acquaintance of David Johnston, was used as a confidential informant by the Tri-County Task Force for the purpose of catching drug dealers in Winston, Clay and Oktibbeha Counties. Brown was used in this case to catch Johnston. In exchange for his cooperation, Brown was to receive leniency in his punishment for pending criminal charges.

¶ 4. Brown and Officer David Porter, a narcotics agent with the Tri-County Task Force, met with Johnston on May 19, 1992 and purchased an eighth of an ounce of marijuana from him. Johnston was indicted on October 7, 1993 and was subsequently convicted for selling less than one ounce of marijuana in violation of Miss.Code Ann. § 41-29-139(a)(1),(b)(3). Johnston was sentenced, posted bond and appealed to this Court.

I.

¶ 5. Johnston argues that the trial court erred in denying his requested continuance. On the day of trial, the State first learned of the existence of a tape recording of the drug transaction. The State promptly advised defense counsel of the existence of the tape. Defense counsel, however, was aware of the possible existence of the tape, but had not requested its production. Defense counsel listened to the tape, knew its contents, but apparently chose not to introduce the tape as evidence. The tape was not offered by the State during its case in chief. However, during rebuttal, the trial court allowed the introduction of the tape into evidence. Arguing discovery violations, Johnston requested a continuance, which was denied. Johnston now asks this Court to reverse his conviction due to the refusal of the trial court to grant his requested continuance.

¶ 6. The familiar guideline for such an alleged discovery violation is Box v. State, 437 So.2d 19 (Miss.1983). In the case subjudice, there is no question that the defense had known of the existence of the tape recording of the drug sale since the preliminary hearing. When one examines this record as a whole, it is readily apparent that there is no miscarriage of justice, thus, if error is present, it is harmless. Dennis v. State, 555 So.2d 679, 682 (Miss.1989)(citing McKinney v. State, 482 So.2d 1129 (Miss.1986); Buckhalter v. State, 480 So.2d 1128 (Miss.1985)).

¶ 7. Here, there is no surprised or ambushed party. It is clear from the record that the district attorney only learned of the existence of the tape of the drug sale transaction on the morning of the trial, whereupon the State immediately advised defense counsel of the existence of the tape. However, defense counsel already knew of the existence of the tape, having learned of its existence during Johnston's preliminary hearing when Officer Mike Perkins testified that a tape recording of the drug transaction had been made.

¶ 8. Although the facts clearly show that the district attorney was unaware of Officer Perkins' prior testimony about the tape recording, he not only should have known about the tape, but also is charged with making the defense aware of its existence.

¶ 9. Defense counsel Liddell requested a copy of the tape recording and was advised by Officer Perkins to contact the Tri-County narcotics office and "the secretary would let him hear it or dub him a tape." Judge Loper then offered the defense an opportunity to examine Officer Perkins regarding that statement, to which defense counsel responded, "Okay. No more questions." It is very clear that the defense was not caught off guard or unprepared to respond. Neither could the defense claim "unfair surprise," as *536 in Box, 437 So.2d at 23. Nor is this situation one in which Johnston has been "ambushed" or subjected to "unfair surprise" at trial, which Rule 4.06 is designed to avoid. See McCaine v. State, 591 So.2d 833, 836 (Miss.1991)(citing Harris v. State, 446 So.2d 585, 589 (Miss.1984)).

¶ 10. The case at bar clearly illustrates one of those "unusual circumstances" where the trial court is not required to grant a requested continuance. Box, 437 So.2d at 23. Defense counsel, aware of the existence of the tape, never even requested its production. Nor is this one of those situations where it is "reasonable to presume that there is something suspect about a [State or defense] witness [or other evidence that] is not identified until after the 11th hour has passed." Taylor v. Illinois, 484 U.S. 400, 414, 108 S.Ct. 646, 655, 98 L.Ed.2d 798 (1988). The district attorney should have been aware of the tape, but was not. However, defense counsel was certainly aware of the existence of the tape because defense counsel and Johnston were present during the preliminary hearing when the existence of the tape was revealed. The record also reflects that Johnston and his counsel listened to the tape, but elected not to introduce the tape into evidence. Under these circumstances, this Court can not say the trial judge erred in allowing the State to proceed and denying Johnston a continuance. Because there was no unfair surprise or ambush of the defense under the facts of this case, we hold that error, if any, was harmless.

¶ 11. In addition, the tape was played to the jury only during the State's rebuttal evidence. This Court, in Gallion v. State, 517 So.2d 1364 (Miss.1987), a case which concerned a situation very similar to the case at bar where evidence was only offered during rebuttal, held:

Clearly no reversible error had occurred at that stage of the trial because of a Rule 4.06 violation. The State had not attempted to offer any portion of the tape to the jury, and therefore defense could not complain about the State offering incriminating evidence not revealed prior to trial. Nor, could defense complain that exculpatory evidence was kept from [defendant], because it was shown to him and his counsel, and an opportunity given to offer it into evidence if he chose....True, [defendant's] trial strategy had been burst. But, this was a strategy he undertook wholly apart from what the tape would have revealed. Nothing the State did or said prior to trial caused or led [defendant] into adopting the strategy he adopted.

Gallion, 517 So.2d at 1372. Johnston's trial strategy defense of entrapment was entirely undermined or defeated when the tape was played for the jury, because it clearly demonstrated his propensity and predisposition to sell drugs.

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Cite This Page — Counsel Stack

Bluebook (online)
730 So. 2d 534, 1997 WL 539535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-v-state-miss-1997.